THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


V 


^^^  ^ 


V,- 


A 
SELECTION    OF    CASES 


LAW   OF  CONTRACTS 


BY 

WILLIAM    A.    KEENER 

HI 
KENT    PROFESSOR    OF    LAW    AND    DEAN    OF    THE   FACULTY    OF   LAW 
IN   COLUMBIA    UNIVERSITY 


IN  TWO  VOLUMES 
VOL.    I 


NEW   YORK 
BAKER,  VOORHIS   &   COMPANY 

1898 


.> 


T 

KZ5ZBc 


COPYRIGHT,    1S90 

By  WILLIAM   A.   KEENER 


4 


NOTE. 

The  attempt  has  been  made  in  this  compilation  to  furnish 
the  student  with  a  collection  of  cases  developing  the  funda- 
mental principles  involved  in  the  formation,  performance,  and 
discharge  of  simple  contracts  and  contracts  under  seal. 

As  the  collection  has  been  prepared  primarily  with  reference 
to  the  needs  of  the  students  in  the  School  of  Law  of  Columbia 
University,  cases  relating  to  the  statute  of  frauds,  the  statute 
of  limitations,  and  the  jurisdiction  of  equity  over  contracts 
have  been  omitted  without  regard  to  the  question  of  classifica- 
tion, these  topics  being  adequately  treated  in  that  School  in 
other  courses.  W-   ^-   ^• 

New  York,  September  1,  1898. 


735182 


TABLE   OF   CONTENTS. 

VOLUME  I. 


PAGE 

Table  of  Cases, ^^ 

PART  I. 
FORMATION  OF  CONTRACTS. 


T 


187 


CHAPTER  I. 

Simple  Contracts,  .  .          •          •         • 

Section  I. — Offer  and  Acceptance,        ...  i 

a.  Necessity  of  Intention  to  Create 

a  Legal  Obligation,  .          .  i 

b.  Effect  of  Mistake,       ...  7 

c.  Necessity    of    Communication    of 

Offer  and  Acceptance-,  .  .  50 

d.  By    Whom    Offer    must    be     Ac- 

cepted,       .  .          .  •  • 

e.  Necessity  of  Certainty  OF  Terms,        193 
/.    Acceptance  must  be  in  Terms  of 

Offer,         .....        213 

g.   Termination    of  Offer  by  Reyo- 

cation,        .  .  .  .  •        235 

//.   Termination    of  Offer  by  Lapse 

OF  Time,     .         •.          .          •          -273 

/.  Termination  of  Offer  by  Counter 
Offer  or  Modified  Accept- 
ance, .  .  .          .         • 

J.    Termination  of  Offer  by  Death 

or  Insanity,       .         .         .         •       296 


287 


Vi  CONTENTS. 

PAGE 

Section  II. — Consideration,      .         .         .         .         .31^ 

a.  Distinction      between      Motive 

AND  Consideration,         .         .       314 

b.  When  Consideration  Necessary,       324 

c.  Surrender   of    Right  as  a  Con- 

sideration,       ....         T,Zd 

d.  Performance  of,  or  Promise  to 

Perform  a  Contract  Obliga- 
tion as  a  Consideration,        .       395 

€.  Performance  of,  or  Promise  to 
Perform  a  Non-contract  Ob- 
ligation, .....       489 

/.   Forbearance    or    Compromise  as 

A  Consideration,     .         .         .       512 

g.  Antecedent  Act  or  Agreement 

as   a    Consideration,      .         .       588 

li.  Moral  Obligation  as  a  Consid- 
eration, .          .          ,          .  .617 

CHAPTER  II. 
Contracts  Under  Seal,        ......       691 

Section  I. — Signing  and  Sealing,     ....        691 

Section  II. — Delivery,       ......        703 

Section  III. — Consideration,    .         .         .         .         -752 


PART  II. 
OPERATION    OF    CONTRACTS. 


CHAPTER  III. 

Rights  and  Liabilities  of  Third  Persons,         .         .  769 

Section  I. — Beneficiaries, 769 

Section  II. — Assignees,      ......  855 


Vll 


VOLUME     II. 


PART  II. 


OPERATION    OF    CONTRACTS. 

(CONTINUED.) 


CHAPTER  IV.  PAGE 

Joint  and  Several  Contracts,    .....  961 

CHAPTER  V. 

Contracts  Performable  in  the  Alternative,  .         .  1004 

CHAPTER  VI. 

Conditional  and  Unconditional  Contracts,      .         .  1020 

Section  I. — Conditions  Precedent  or  Concurrent,  1020 

a.  Express  or  Implied  in  Fact,        .  1020 

b.  Conditions  Implied  in  Law,          .  1140 

Section  II. — Conditions  Subsequent,       .         .         .1231 

Section  III. — Waiver    of    Performance  of  Condi- 
tions,        ......  1254 

Section  IV. — Unconditional  Contracts,         .         .  135 1 

CHAPTER  VII. 

Remedy  for  Breach  of  Contract,                ...  1388 


PART  III. 
DISCHARGE    OF    CONTRACTS. 


CHAPTER  VIII. 
Rescission,      .........     1467 


viii  CONTENTS. 

CHAPTER  IX.  PAGE 

Novation,        .....•.••      ^497 

CHAPTER  X. 
Accord  and  Satisfaction,    ......      1547 

CHAPTER  XL 
RELEASE; 1576 

CHAPTER  Xn. 
Illegality, i5^5 

CHAPTER  XIII. 
Impossibility  op  Performance,     .         .         .         .         .1652 

CHAPTER  XIV. 
Duress,    ....         ......     1774 

Index,      .         . 1817 


TABLE   OF   CASES.. 


In  this  Table  each  case  which  has  the  names  of  two  parties  is  entered 
twice — that  is  to  say,  under  both  names,  except  where  these  are  identical. 


Abbott  V.  Doane 

Aborn  v.  Merchants'  Despatch 
Transportation    Co. 

Acton  V.  Cage.     II 

Adams  v.  Dixon 

Adams   v.    Kuehn 

Adams  v.    Lindsell 

Adams  v.  Power.     II 

Agnew  V.   Fullerton.     II 

Albany    v.    Sturlyn 

Alexander  v.  Ranay.     II 

Algar  V.   Smith 

Aller  V.  Aller 

Allen  V.  Harris.     II 

Allen  V.   O'Keefe 

Alliance  Bank,  The,  v.  Broom 

Ambergate,  Nottingham  & 
Boston  &  Eastern  Junction 
Railway  Co.,  The,  v.  Cort 
&  Gee.     II 

Ames  z;.   McMillan 

Anderson  v.    Hewitt 

Anderson  v.   Martindale.     II 

Anderson  v.    May.     II 

Anheuser-Busch  Brewing  As- 
sociation V.   Mason.     II 

Anonymous 

Appleby  v.  Johnson 

Applegarth  and  Bradley  v. 
Coleman 

Arend  v.  Smith 

Arkansas  Valley  Smelting  Co. 
V.   Belden  Mining  Co 

Armitage  v.    Insole.     II 

Ashburnham  and  Wife  v.  Jones 

Atchison  v.  Scott.     II 


P.A.GE 

PACi: 

485 

Atkins  and  Wife  v.  Hill 

61S 

Atkinson  v.  Ritchie.     II 

1207 

26 

Atkinson   v.    Settree 

489 

I23I 

Atkinson  v.  Tweddle 

787 

393 

Ault  &  Wood  V.  Lyth.     II 

1500 

827 

Ayres  v.   The  C,   R.   I.   &  P. 

93 

R.  Co. 

44: 

1535 

Bagge  V.   Slade 

394 

1652 

Bailey  v.  The  Mayor  and  Com- 

340 

mon  Council  of  Hoboken 

48 

1020 

Baily  v.  De  Crespigny.     II 

f7I2 

519 

Bainbridge  v.   Firmstone 

350 

754 

Baker  v.   Holt 

218 

1547 

Balbirnie  v.   Thurneli.     II 

II2(J 

888 

Ball  V.   Brooks 

345 

542 

Bankart  v.   Bowers.     II 

1 166 

Banks  v.  Little 

812 

Bannister   v.    Brice 

909 

Barker  and  Wife  t.  Hay  ward 

684 

1272 

Barker  v.   Hodgson.     II 

1690 

759 

Barkley  v.  Jones.     II 

1259 

6 

Barnes  v.   Brown.     II 

1338 

977 

Barnes   v.    Hekla    Fire    Insur- 

1764 

ance  Co. 
Bartlett     v.     The     Boston     & 

851 

1608 

Maine  Railroad 

245 

513 

Bartlett  v.   Wyman 

437 

213 

Bascom  v.  Smith 

39 

Bate  V.  Hunt 

58S 

264 

Batterbury  v.  Vyse.     II 

iiir 

487 

Baxendale  v.  Hadley.     II 

1407 

Baxter  v.    Burfield 

937 

883 

Bay  V.  Williams 

818 

1086 

Beach  v.  The  First  Methodist 

514 

Episcopal   Clnirch 

309 

1506 

Beale  v.    Skeate.     II 

1774 

Note. — Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


TABLE   OF   CASES. 


I-AGE 

PAGE 

Beaumont  v.  Greathead.     II 

1548 

Borelly  v.  Christie.     II 

138^ 

Beaumont  v.  Reeve 

657 

Boston,  City  of,  v.  Loring 

273 

Beckham  v.   Drake.  Knight  & 

Boston  Ice  Co.  v.  Potter 

189 

Surgey 

937 

Boston  &  Maine  Railroad,  The, 

Beech  v.   Ford.     II 

1550 

V.  Bartlett 

245 

Beecham  and  Smith  v.  Smith. 

Boulton  V.   Jones 

187 

II 

969 

Bowden  v.  Judson.     II 

1375 

Beecher  v.  Conradt.     II 

1362 

Bowers  v.  Bankart.     II 

1 166 

Beer  v.  Foakes 

407 

Boylan  v.   Hot   Springs   Rail- 

Behan v.   United   States.     II 

1420 

road  Co. 

30 

Behn  v.  Burness.     II 

1057 

Boynton  v.  Pixley.     II 

1595 

Belden  Mining  Co.  v.  Arkan- 

Bradburne v.  Bradburne 

378 

sas    Valley    Smelting    Co. 

883 

Bradford    Old    Bank,    The,   v. 

Bellows  V.   Sowles 

557 

Walker 

932 

Bennett   and   Carlisle   v.    The 

Bradford  v.  Roulston 

606 

Superintendent     and     Trus- 

Bradford v.   Williams.     II 

1215 

tees  of  Public  Schools  of  the 

Bradley  v.  Hayden.     II 

1093 

City  of  Trenton.     II 

1741 

Brathwait  v.  Lampleigh 

592* 

Bennett     v.     Merchants'     De- 

Brauer v.  Shaw 

269 

spatch  Transportation   Co. 

26 

Brett  V.  Roberts.     II 

1078 

Bente  v.  Gibbons.     II 

1416 

Brewer  v.  Taylor 

3 

Bettini  v.  Gye.     II 

1218 

Brice  v.   Bannister 

909 

Bidder  v.   Bridges 

420 

Bridge  v.  Reynolds.     II 

1450 

Bigelow  V.  Marston 

833 

Bridges  v.   Bidder 

420 

Bignall  v.  Gould.     II 

T457 

Briggs  V.  Callonell.     II 

1030 

Bindley  v.   Felthouse 

82 

Brill  V.  Tuttle 

895 

Bingham  v.   The  Goshen  Na- 

British Wagon  Co.,  The,  and 

tional  Bank 

921 

The  Parkgate  Wagon  Co.  v. 

Birks  V.  Trippet.     II 

IIOI 

Lea  &  Co. 

879 

Bischoffsheim  v.  Callisher 

550 

Broadbent  v.  Liversidge.     II 

1530 

Bishop  V.  Eaton 

181 

Brooks  V.  Ball 

345 

Bishop  z:   Palmer.     II 

1624 

Brooks  V.   Haigh 

351 

Blacklowe  v.  Hunlocke.     II 

1021 

Brooks  V.    Pearce.     II 

1597 

Blake  v.   Cadwell.     II 

1049 

Broom  v.   The  Alliance  Bank 

542 

Blake  &  Co.  v.  Hamburg  Bre- 

Brown  v.   Barnes.     II 

1398 

men  Fire  Insurance  Co. 

158 

Brown  v.    Foster.     II 

1 105 

Blake  v.  Elliott.     II 

1231 

Brown  v.  The  Royal  Insurance 

Blewitt  V.  Boorum 

733 

Co.     II 

1699 

Bluett  V.  White 

355 

Browning  v.  Lewis 

166 

Boardman  v.  Borden 

849 

Brunei  v.  Sibthorp.     II 

1379 

Board  of  Education  of  Perrys- 

Buck  V.  Manhattan  Life  Insur- 

burg V.    Ohio   ex   rel.    Las- 

ance  Co.     II 

1249 

key  et  al.     II 

1644 

Burchell  v.  James.     II 

1227 

Boit  &  McKenzie  v.  Maybin 

172 

Burfield  v.  Baxter 

937 

Boone  v.  Eyre.     II 

1206 

Burn  and  Vaux  v.  Morton 

520 

Boorum  v.  Blewitt 

733 

Burness  v.   Behn.     II 

1057 

Borden  v.   Boardman 

849 

Burr  V.  Freeth.     II 

1310 

Note. — Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


TABLE   OF  CASES. 


XI 


Byers  r.  Wilkinson 

Byrne  &  Co.  v.  Van  Tienhoven 
&  Co. 

Cadwallader  v.  Thomas.     .11 

Cadwell  v.   Blake.     II 

Cage  V.  Acton.     II 

Calahan  v.  Dickinson 

Caldwell   v.    Taylor.     II 

Callisher  v.  Bischoffsheim 

Callonell  v.   Briggs.     II 

Calnan  v.  Wells.     II 

Campbell  v.  Jones.     II 

Campbell  v.  Lacock 

Candor  and  Henderson's  Ap- 
peal 

Carbolic  Smoke  Ball  Co.  v. 
Carlill 

Carlill  V.  Carbolic  Smoke  Ball 
Co. 

Carpenter  v.  Shepard 

Carter  v.  Nichols 

Carwardine  v.   \\''illiams 

Caton  V.  Day 

Cave  V.  Payne 

Chamberlain  z'.  Williamson 

Chandler  v.  State  of  ^Maine. 
II 

Chappell  V.  Ware.     II 

Chicago  &  Great  Eastern  Rail- 
way Co.,  The,  V.  Dane 

Chicago,   Santa  Fe  &  Califor- 


Railroad    Co. 


Price. 


II 
II 
II 


nia 

II 
Chism  V.  Schipper. 
Choice  V.  Moseley. 
Christie  v.  Borelly. 
Churchill  v.  Manter 
City  National  Bank  of  Dayton 

O.,  V.  Kusworm.     II 
City  Rice  Mills  v.  Thorn. 
Clark  v.  Fey.     II 
Clark  V.   McNitt.     II 
Clarke  v.  Watson.     II 
Clements  v.  Williamson 
Clifford  V.   Watts.     II 
Cline  &  Co.  v.  Templeton 
Clinton     Water     Works 

The,  V.  Davis 


II 


Co., 


PAGE 

395 
260 

1033 
1049 
I23I 

947 
1703 

550 
1030 
1 182 
1357 

790 

752 

372 

372 
204 
900 

4 
86 

235 
942 

973 

1351 

193 


1 123 
II 18 
1013 
1381 

552 

1797 

TOIO 
I20I 
IOI4 
III4 

343 

1751 

554 

809 


and 


II 
Min- 
Rail- 

Co., 

.     II 


Cochran  v.  Corbett.     II 

Cochrane  z'.  Green.     II 

Codman   z'.    Krell 

Cole  v.  Kerrison.     II 

Cole  v.   Pordage.     II 

Coleman    z:     Applegarth 
Bradley 

Coleman  v.  Robertson 

Collyer  &  Co.  v.  Moulton. 

Columbus  Rolling  Mill  v. 
ueapolis  &  St.  Louis 
v/ay 

Commercial      Insurance 
The,  V.  Hallock 

Commonwealth  v.  Overb\ 

Compton  V.  Jones.     II 

Conradt  z:  Beecher.     II 

Cook  z:  Wright 

Cooper  V.  The  Presbyterian 
Church  of  Albany 

Cooper  V.  Walmesley  and 
Nelstrop.     II 

Corbett  v.  Cochran.     II 

Corlies  and  Tift  v.  White 

Corrigan  v.  Gifford 

Cort  &  Gee  v.  The  Amber- 
gate,  Nottingham  &  Boston 
&  Eastern  Junction  Railway 
Co.     II 

Coupland  v.  Howell.     II 

Coupland  v.  Wilson.     II 

Cowan   V.    Milbourn.     II 

Cowan  V.  O'Connor 

Cowley  V.    Patch.     II 

Cozens  v.  Rolt.     II 

Crears  v.   Hunter 

C,  R.  I.  &  P.  R.  Co..  The,  v. 
Ayres 

Crisp  V.  Gamel 

Crisp  and  Goldings  Case 

Cromwell  z'.   Grunsden 

Crossley  v.  ]\Iaycock 

Crowfoot  V.  Gurney.     II 

Crump  v.  Martin.     II 

Cunard  Steamship  Co.  c.  Fon- 
seca 

Cundy  and  Bevington  v.  Lind- 
say 


PAGE 

1521 

1504 

763 

1629 

1 140 

264 


H7i 


293 

112 
1676 
1529 
1362 

544 

386 

1576 

1521 

170 

839 


1272 
1759 
1527 
1585 
80 

986 
1165 

578 

441 
379 
376 
691 

217 

1497 

977 

35 

15 


Note. — Numeral  II  after  name  indicates  that  case  is  in  Volume  TI. 


xu 


TABLE    OF   CASES. 


Daggett  V.  Rupley 

Dana  z:  Merrill 

Dane  v.  The  Chicago  &  Great 

Eastern  Railway  Co. 
Daniels  v.  Newton.     II 
Davidson  :'.  England 
Davidson  :•.  Coulding 
Davies  z\  Offord 
Davies  x'.   Victors 
Davis  z:  Eddy.     II 
Davis  v.  Jaffray 
Davis  Sewing  Machine  Co.  v. 

Richards 
Davis  r.    The   Clinton   Water 

Works  Co. 
Day  V.  Caton 
Day  V.  McCreery.     II 
Day  V.  IVIcLea.     II 
De  Crespigny  v.  Baily.     II 
De  la  Tour  v.  Hoclister.     II 
Denton   &    Barker   v.    Fairlie. 

II 
De  Roos  V.  Newcomb 
Devlin  v.  The  Mayor,   Alder- 
men and  Commonalty  of  the 

City  of  New  York 
Devon  V.  Powlett 
Dickinson  v.  Calahan 
Dickinson  v.  Dodds 
Diggon  V.  Head 
Dixon  V.   Adams 
Doane  v.  Abbott 
Doane  v.  Hanauer.     II 
Dobbins  v.   Jordan 
Docket  V.  Voyel 
Dodds  v.  Dickinson 
Dorell  V.  Herring 
Douglas  V.  Jell.     II 
Drake.    Knight    &    Surgey    v. 

Beckham 
Drake  z:   White.     II 
Drew  V.  Nunn 
Duff  V.  Powell 
Duke  of  St.   Albans,   The,  v. 

Shore.     II 
Duluth.    Missabe   &   Northern 

Railway  Co.  v.  King 


13 
890 

193 
1293 

502 

669 
247 
599 
1367 
429 

176 

809 
86 
1480 
1568 
1712 
1281 

1518 
72 


936 
947 

252 

237 
393 
485 
1602 
299 

591 
252 
491 
976 

937 

1018 

301 

744 

1171 
463 


Dunham  &  Dimon  v.  Pettee  & 
Mann.     II 

Dunham  v.   Griswold.     II 

Dunlop  V.  Higgins 

Dunton  v.  Dunton 

Duntze  v.  Terry.     II 

Duplex  Safety  Boiler  Co.,  The, 
V.  Garden.     II 

Durnherr  t'.  Rau 

Dusenbury  v.  Hoyt 

Button  and  Wife  v.  Poole 

Duvergier  v.  Fellows.     II 

Eagle  Insurance  Co.,  The,  v. 
McCulloch 

East  India  Co.  v.  Hotham.     II 

Easton  v.  Price 

Eastwood  z'.  Kenyon 

Eaton  v.  Bishop 

Eddy  V.  Davis.     II 

Edmunds  v.  Merchants'  De- 
spatch Transportation  Co. 

Elliott  V.  Blake.     II 

Ellsworth  z'.  Heermans 

England   v.    Davidson 

Erie  Preserving  Co.  v.  Lincoln 

Erie  Railway  Co.,  The.  v.  The 
Union  Locomotive  and  Ex- 
press Co.     II 

Evans  v.    Prosser.     II 

Evans  &  Co.  z-'.  McCormick 

Eyre  z:   Boone.     II 

Facey  v.  Harvey 

Fairlie  v.  Denton  &  Barker. 
II 

Farren  v.  Kemble 

Farrow  1 

F ,  D 

Featherston  v.  Hutchinson. 

Fellows   V.    Duvergier.     II 

Felthouse  v.  Bindley 

Fenton  v.  Trueman 

Fey  V.    Clark.     II 

Field  V.   Milner.     II 

Firmstone  v.  Bainbridge 

First  Methodist  Episcopal 
Church,  The,  v.   Beach 

First  National  Bank  v.  Wat- 
kins 


II 

Wilson   and   Wife 

-  z'.   S 

II 


PAGE 

1044 

1788 

98 

3^7 
1353 

1 108 

847 

682 

769 

1652 

95 

1241 

771 

641 
181 

1367 

26 

1231 

916 

502 

192 


1636 
990 
184 

1206 
207 

1518 
1447 

955 

149 

1619 

1652 

82 

621 
1201 
mo 

350 

309 
173 


Note.— Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


TABLE    OF   CASES. 


xin 


Fitch  and  Jones  v.  Snedaker 

Fleming  v.  Kelso.     II 

Fletcher  v.  Sherwin 

Flight  V.  Reed 

Foakes  v.  Beer 

Foley  V.  Speir.     II 

Fonseca  v.  Cunard  Steamship 
Co. 

Ford  V.   Beech.     II 

Forrest  v.  The  Oregon  Pacific 
Railroad   Co.     II 

Foster  v.  Brown.     II 

Foster  v.    Mackinnon 

Foster  v.   Valentine 

Fox  V.   Lawrence 

Franklin  v.  r^Iiller.     II 

Fraser  v.  Henthorn 

Freeih  v.  Burr.     II 

Frost  V.    Knight.     II 

Fuller's  Case 

Fullerton  v.  Agnew.     II 

Gamel  v.  Crisp 

Gandell  v.   Rawstorne.     II 

Gardner  v.  Gray.     II 

Garden  v.  The  Duplex  Safety 
Boiler  Co.     II 

Gaskell  v.   King.     II 

Gerli  v.  Poidebard  Silk  Manu- 
facturing Co.     II 

Getman  v.  Lacy 

Gibbons   v.    Bente.     II 

Gibbons   v.    Vouillon.     II 

Giddings  v.  Merrick  and  Du- 
rant 

Gifford  V.   Corrigan 

Gilbert  v.  The  North  Ameri- 
can  Fire   Insurance   Co. 

Giles  V.   Giles.     II 

Gillett  V.  King.     II 

Gillmore   v.    Lewis 

Glaholm  v.  Hays.     II 

Glazebrook  v.  Woodrow.     II 

Glenn  v.   Marbury 

Globe  Mutual  Life  Insurance 
Co.,  The,  V.  The  People  of 
the  State  of  New  York.     II 

Goshen  National  Bank,  The,  v. 
Bingham 


P.\GE 

45 

1513 

391 

661 

407 

1620 

35 

1550 

1810 

1 105 

8 

658 

777 
1211 

141 
1310 
1287 

339 
1652 

379 

979 

1241 

1 108 
1C32 

1202 

956 

1416 

1580 

479 
839 

719 
1039 
1470 

504 
1071 
1 147 

856 


1719 
921 


Gould  V.  Bignall.     II 

Goulding  v.    Davidson 

Grand  Lodge  v.  National  Bank 

Grant  v.  Johnson.     II 

Grant  v.   Routledge 

Grant  v.  The  Household  Fire 
and  Carriage  Accident  In- 
surance Co. 

Graves  v.  Johnson.     II 

Gray  v.  Gardner.     II 

Gray  v.  Hesketh.     II 

Greathead  v.  Beaumont.     II 

Great  Northern  Railway  Co., 
The,  V.  Witham 

Green  v.  Cochrane.     II 

Greene   v.    Yerrington.     II 

Griswold  v.  Dunham.     11 

Gruninger  v.  Philpot 

Grunsden  v.  Cromwell 

Guile  V.  Pickas 

Gimning  v.   Royal 

Gurney  v.  Crowfoot.     II 

Gye  V.  Bettini.     II 

Haas  V.   Silvers 

Hackett  v.  Rae.     II 

Hadley  v.  Baxend'ale.     II 

Haigh  V.  Brooks 

Hale  V.  Spaulding.     II 

Hall   V.   Wrig'.it.     II 

Hallock  V.  The  Commercial  In- 
surance Co. 

Ham  V.  Stoddard 

Hamburg  Bremen  Fire  Insur- 
ance Co.  V.  Blake  &  Co. 

Hamer  v.  Sidway 

Hanauer  v.  Doane.     II 

Harber    Brothers    Co.    v. 
^^lofifat  Cycle  Co.     II 

Flarman  v.  Roljinson.     II 

Harris  v.  Allen.     II 

Harris  v.  More 

Harrison   v.    The    People, 

Harsen  v.  Lattimore 

Hart  V.   Miles 

Hartford     Insurance     Co 
Semmes.     II 

Harvey  v.    Facey 


PAGE 

1457 

669 

807 

I  158 

239 


iiB 
161 1 
1244 
1239 
1548 

196 

1504 

1747 
1788 

319 
691 

341 
556 
1497 
1218 
161 
1069 
1407 

351 
981 

1725 

112 
23 

158 

363 

1602 

1341 
1388 

1547 

511 

II  988 

440 

357 

V. 

1245 
207 


The 


Note. — Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


XIV 


TABLE   OF   CASES. 


Harvey  v.  Maclay 

Hastings  v.   Lovejoy.     H 

Hatch  V.  Purcell 

Haugh  V.  Roe.    H 

Havves  v.  Smith 

Hawkes  and  Wife  v.  Saunders 

Hayden  v.  Bradley.     H 

Hays  V.  Glaholm.     H 

Hayward  v.  Barker  and  Wife 

Hazlerigg  v.  Parks 

Head  v.  Diggon 

Healey  v.  Spence.     H 

Heather  v.   Richards.     H 

Heermans  v.  Ellsworth 

Heini  v.  Kromer.     II 

Hekla  Fire  Insurance  Co.  v. 
Barnes 

Henthorn  v.  Fraser 

Herring  v.  Dorell 

Hesketh  v.  Gray.     II 

Hewitt  V.   Anderson 

Hibbard,  Spencer,  Bartlett  & 
Co.  V.  Summers.     II 

Higgins  V.   Dunlop 

Hilary  v.  Taylor.     II 

Hill  v.   Atkins  and  Wife 

Hills  V.  Sugiirue.     II 

Hinckley  v.  Pittsburgh  Besse- 
mer Steel  Co.     II 

Hoare  v.  King.     II 

Hoare  v.  Rennie.     II 

Hobbs  V.  Massasoit  Whip  Co. 

Hoboken,  The  Mayor  and 
Common  Council  of,  v.  Bai- 
ley 

Hochster  v.  De  la  Tour.     II 

Hodgson  V.  Barker.     II 

Hoey  V.  Tallman 

Hoffmann  &  Co.  v.  Tinn 

Holbrook  v.  Schenectady  Stove 
Co. 

Holderman  v.  Keller 

Holywell  Railway  Co.,  The,  v. 
Stubbs 

Holt  V.   Baker 

Honck  V.  Aluller.     II 

Hood  V.  Kane.     II 


PAGE 

PAGE 

280 

Hooper  v.  Jacksonville,  May- 

I49I 

port,     Pablo     Railway     and 

601 

Navigation  Co. 

700 

I516 

Hopkins  and  Wife  v.  Logan 

594 

342 

Home  V.   Niver 

286 

625 

Hot  Springs   Railroad  Co.   v. 

1093 

Boylan 

30 

IO7I 

Hotham  v.  East  India  Co.     II 

1241 

684 

Household  Fire  and  Carriage 

696 

Accident  Insurance  Co.,  The, 

2i7 

V.  Grant 

118 

1469 

Howell  V.  Coupland.     II 

1759 

993 

Howell  V.  Maclvers 

924 

916 

Howling  V.  Tully.     II. 

1 186 

1558 

Hoyt  V.  Dusenbury 

682 

Hudson  V.  Revett 

745 

851 

Hughes  V.  Rann 

ZZ^ 

141 

Hughes  V.  Simpson 

231 

491 

Hull  V.   Ruggles.     II 

1616 

1239 

Humphreys  v.  Werner 

296 

6 

Hunlocke  v.  Blacklowe.     II 

1021 

Hunt  V.  Bate 

588 

1767 

Hunt   V.    Livermore.     II 

1385 

98 

Hunter  v.  Crears 

578 

1467 

Hutchinson  v.  Featherston.     II 

1619 

618 

Hyde  V.  Wrench 

287 

1695 

Ilsley  V.  Jewett 

Imperial    Loan    Co.,    The,    v. 

655 

1390 

Stone 

311 

982 

Insole  V.  Armitage.     II 

1086 

1175 

Jacksonville.    Mayport,     Pablo 

89 

Railway  and  Navigation  Co. 

V.   Hooper 

700 

Jaffray  v.  Davis 

429 

48 

James  v.   Burchell.     II 

1227 

1281 

Jamieson  v.  Renwick 

384 

1690 

Jell  V.  Douglas.     II 

976 

930 

Jewett  V.  Ilsley 

655 

52 

Johnson  v.  Appleby 

213 

Johnson  v.  Grant.     II 

1158 

223 

Johnson  v.  Graves.     II 

1611 

I 

Johnson  v.  Rawson.     II 

1153 

Johnstone  v.  Milling.     II 

1331 

944 

Jonassohn  v.   Young.     II 

1179 

218 

Jones  V.  Ashburnham  and  Wife 

514 

131S 

Jones   V.    Barkley.     II 

1259 

1037 

Jones  V.   Boulton 

187 

Note.— Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


TABLE   OF   CASES. 


XV 


Jones  V.    Campbell. 
Jones  V.  Compton. 
Jones  V.  Taylor 
Jordan  v.  Dobbins 
Judson  v.  Bowden. 


II 

II 


II 


Kane  v.   Hood.     II 

Keller  z'.    Holderman 

Kelly  z:  Roberts 

Kelso  z'.    Fleming.     II 

Kemble  z'.   Farren.     II 

Kent  V.  Rand 

Kenyon  v.  Eastwood 

Kerrison  v.   Cole.     II 

Kershaw  v.  Aloulton 

King  V.  Duluth,  Missabe  & 
Northern  Railway  Co. 

King  t'.    Gaskell.     II 

King   v.    Gillett.     II 

King  V.  Hoare.     II 

King  V.  Oldershaw  and  Mus- 
ket 

King  V.   Sears 

Kinglake  v.   Mattock.     II 

Kingsbury  v.    Sargent.     II 

Kingston   z'.    Preston.     II 

Kirkpatrick  z'.   Scully.     II 

Knight  V.  Frost.     II 

Kreiter  v.  Miller  &  Reist 

Krell   z'.    Codman 

Kromer  v.   Heim.     II 

Kuehn  v.  Adams 

Kusworm  v.  The  City  Nation- 
al Bank  of  Dayton,  O.     II 

Lacock  v.  Campbell 

Lacy  V.   Getman 

Lamb  z>.  Morton.     II 

Lampleigh  v.  Brathwait 

Lattimore  v.   Harsen 

Laughter's  Case.     II  ■ 

Layton  v.    Pearce.     II 

Law  v.  Local  Board  of  Red- 
ditch.     II 

Lawrence  v.    Fox 

Lea  &  Co.  v.  The  British  Wa- 
gon Co.  and  the  Parkgate 
Wagon  Co. 

Lee  V.  Loyd 


I'AGE 

1357  Lee  V.  Muggeridge 

1529  Legh  V.  Legh 

74  Lendon  v.    Roper.     II 

299  Leneret  v.  Rivet 

1373  Lewis  z'.  Browning 

1037  Lewis  z'.   Gillmore 

I  Lincoln  v.  Erie  Preserving  Co. 

794  Lindsay  z'.  Cundy  and  Beving- 
1513  ton 

1447  Lindsay    z'.    Smith    and    Hos- 

686  kins.     II 

641  Lindsell  v.  Adams 

1629  Little  z'.   Banks 

199  Littlefield  v.  Shee 

Littlefield  v.   Storey 

463  Livermore  v.  Hunt.     II 

1632  Liversidge  v.  Broadbent.     II 

1470  Local    Board    of    Redditch    v. 

982  Law.     II 

Lock  V.    Wright.     II 

532  Logan  V.   Hopkins  and  Wife 

380  London,   Chatham  and  Dover 
1373  Railway    Co.,    The,    v.    The 

1785  Southeastern     Railway     Co. 

1 142  II 

1681  Loring  z'.    City   of   Boston 

1287  Losh  v.  Williamson  and  Wife 

918  Loud    z'.    Pomona    Land    and 

763  Water  Co.     II 

1558  Lovejoy  v.    Hastings.     II 

827  Low  v.  Wheatley 

Loyd  V.  Lee 

1797  Lynch  v.  Warren 

790  Lyth  z'.  Ault  &  Wood.     II 

956  Maclvers  z'.  Howell 

1 144  Mackay    and     De     Castro    v. 

592  Stokes.     II 

440  Mackinnon  v.    Foster 

1679  Maclay  v.  Harvey 

1004  Maillardet  v.  Weeks 

Maine,   State  of,  z'.   Chandler. 
1460  II 

777  Makin  v.  Watkinson.     II 
Mandeville  v.  Welch 
Manhattan  Life  Insurance  Co. 

879  V.   Buck.     II 

512  IManter  z'.  Churchill 


PAGE 

630 

901 

1 129 

379 
166 

504 
192 

15 

1642 

93 

812 

640 

903 

1385 

1530 

1460 

103 1 

594 


1439 
273 
335 

1062 
1491 
342 
512 
691 
1500 
924 

1300 

8 

280 

739 

973 

1095 

903 

1249 

552 


Note. — Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


TADLE    OF   CASES. 


PAGE 

Marbury  v.  Glenn  856 
jMarquis  of  Bute  v.  Thompson. 

II.  1692 

Marsden  v.  Moore  &  Day.     II  1156 

Marsh  v.  RoUins  45i 

Marston  z'.  Bigelow  833 
Manila's     Vineyard     Railroad 

Co.  V.  Osborn.     II  97i 

Martin  v.  Crump.     II  977 

Martindale  v.  Anderson.     II  977 
Mason      v.      Anheuser-Busch 

Brewing  Association.  II  1608 
Massasoit  Whip  Co.  v.  Hobbs  89 
IMattock  z'.  Kinglake.  II  1373 
May  z'.  Anderson.  II  1764 
Maybin  v.  Boit  &  McKenzie  172 
]\Ia3'cock  v.  Crossley  217 
Mayor,  Aldermen  and  Com- 
monalty of  tl-'C  City  of  New 
York  V.  Devlin  868 
McClure  v.  Ripley.  II  1263 
McCormick  v.  Evans  &  Co.  184 
McCreery  v.  Day.  II  1480 
McCulloch  z'.  The  Eagle  In- 
surance Co.  95 
M'Kinnell  v.  Robinson.  II  1614 
McLea  v.  Day.  II  1568 
McLean  v.    Stevenson,  Jaques 

&  Co.  288 
McMahon  v.   The   New   York 

and  Erie  Railroad  Co.     II  1437 
McMillan  v.  Ames  759 
McNitt  V.   Clark.     II  1014 
Mellen  v.   Whipple  772 
Merchants'     Despatch     Trans- 
portation Co.  V.  Aborn  26 
Merchants'    Despatch    Trans- 
portation Co.  V.   Bennett  26 
Merchants'    Despatch    Trans- 
portation Co.  V.  Edmunds  26 
Merchants'  Fire  Insurance  Co. 

of  Baltimore,  The,  v.  Tayloe  107 
Merrick   and   Durant   v.    Gid- 

dings  479 

Merrill  v.  Dana  890 

Merrill  v.   Palmer  Boo 


Mersey  Steel  &  Iron  Co.,  The, 
V.  Naylor,  Benzon  &  Co.     II 

Milbourn   zi.    Cowan.     II 

Miles  V.  Hart 

Miles  V.  New  Zealand  Alford 
Estate  Co. 

Miller  v.  Franklin.     II 

Miller  &  Reist  v.  Kreiter 

Milling  z'.  Johnstone.     II 

Mills  V.  Wyman 

Milner  v.  Field.     II 

Minneapolis  &  St.  Louis  Rail- 
way z'.  Columbus  Rolling  Mill 

Minton   v.    Raymond.     II 

Moffat  Cycle  Co.,  The,  v.  Har- 
ber  Brothers  Co.     II 

Montefiore  v.  Ramsgate  Vic- 
toria Hotel   Co. 

Monteith  v.  Smith 

Moore  &  Day  v.  Marsden.     II 

More  z'.  Harris 

Morehouse  v.  The  Second  Na- 
tional Bank  of  Oswego.     II 

Moriarty  v.  Wood  &  Wood 

Morris  v.  Waugh.     II 

Morse  v.   Woodworth.     II 

Morton  v.  Burn  and  Vaux 

A'lorton  v.  Lamb.     II 

Moseley  v.  Choice.     II 

Moses  z'.  Sheeren.     II 

Moulton  V.  Collyer  &  Co.     II 

Moulton  V.  Kershaw 

Muggeridge  v.  Lee 

Muller  V.  Honck.     II 

Myers  v.  Haas 

^lyrick  V.    Slilk 

Nassoiy  v.  Tomlinson.     II 

National  Bank  v.  Grand  Lodge 

Naylor,  Benzon  &  Co.  v.  The 
Mersey  Steel  &  Iron  Co.     II 

Neats  V.  Thornhill.     II 

Newcomb  v.  De  Roos 

Newman  v.  Newman.     II 

Newman  v.  Page.     II 

Newton  v.  Daniels.     II 

New  York  and  Erie  Railroad 
Co.,  The,  V.  McMahon.     II 


1325 

1585 
357 

563 
1211 

918 
1331 

636 


293 
1077 

1341 

278 

494 
1156 

511 

1561 

830 

1590 

1790 

520 

1 144 

1013 

1 169 

1478 

199 

630 

131S 
161 
436 

IS7I 
807 

1325 
1471 
72 
1634 
1435 
1293 

1437 


Note.— Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


TABLE   OF   CASES. 


xvn 


New  York  Life  Insurance  Co. 
V.   Statham.     II 

New  York  Life  Insurance  Co. 
V.  Seyms.     II 

New  Zealand  Alford  Estate 
Co.  V.  Miles 

Nichols  V.  Carter 

Niggley  v.  Thompson.     II 

Niver  v.  Home 

Nixon  V.   Price.     II 

Noble  V.  Ward.     II 

Noel  V.  Tompson.     II 

Nolan  V.  Whitney.     II 

Norfolk  v:  Page 

Norrington    v.    Wright.     II 

North  American  Fire  Insur- 
ance Co.,   The,  z'.   Gilbert 

Northrup  v.   Northrup.     II 

Norton  v.  Webb.     II 

Nunn  V.  Drew 

O'Connor  v.  Cowan 

Offord  V.  Davies 

Ohio  ex  rel.  Laskey  et  al.  v. 
Board  of  Education  of  Per- 
rysburg.     II 

9'Keefe  v.  Allen 

Oldershaw  and  Musket  v. 
King 

Oliveira  v.   Wilkinson 

Ordinary  of  the  State  of  New 
Jersey  v.  Thatcher 

Oregon  Pacific  Railroad  Co., 
The,  V.    Forrest.     II 

Osborn  v.  Alartha's  Vineyard 
Railroad   Co.     II 

Oswego,  The  Second  National 
Bank  of,  v.  ]\Iorehouse.     II 

Overby  v.  Commonwealth.     II 

Page  V.    Newman.     II 

Page  V.  Norfolk 

Paige  V.  Reif 

Palmer  v.    Bishop.     II 

Palmer  v.   ]\Ierrill 

Park  V.   Sorsbie.     II 

Parker  v.  The  Traders'  Na- 
tional Bank 

Parks  V.  Hazlerigg 


1249 

1249 

563 
900 

1793 

286 

1012 

1476 

1-354 

1116 

210 

1 190 

719 

135-2 

1008 

301 

80 

•247 


1644 
888 

532 
348 

722 

1810 

971 

1561 
1676 

1435 
210 
506 

1624 
890 


582 
696 


Parsons    v.    Tillman.     II 

Parsons  v.  Woodward 

Patch  V.   Cowley.     II 

Payne  v.  Cave 

Pearce  v.    Brooks.     II 

Pearce  v.  Laylon.     II 

Pegg  V.   Scotson 

Pennsylvania  Coal  Co.,  The, 
V.  the  President,  Managers 
and  Company  of  the  Dela- 
ware &  Hudson  Canal  Co. 
Ii 

People  of  the  State  of  New 
York  V.  The  Globe  Mutual 
Life  Insurance  Co.     II 

People,  The,  v.   Harrison.     II 

Pettee  &  Mann  v.  Dunham  & 
Dimon.     II 

Phenix  Bank.  The,  of  the  City 
of  New  .York,  v.   Risley 

Phillips  &  Colby  Construc- 
tion  Co.   v.    Seymour.     II 

Philpot  V.  Gruninger 

Pickas  V.    Guile 

Pillans  &  Rose  v.  Van  Mierop 
&  Hopkins 

Pillow  V.  Roberts 

Pindar  v.   Upton.     II 

Pinhowe  v.  Reynolds 

Pittsburgh  Bessemer  Steel  Co. 
V.  Hinckley.     II 

Pi.xley  V.    Boynton.     II 

Plowman  &  McLane  v.  Rid- 
dle.    II 

Poidebard  Silk  IManufacluring 
Co.   V.   Gerli.     II 

Pomona  Land  and  Water  Co. 
V.  Loud.     II 

Poole  V.  Dutton  and  Wife 

Poor  &  Poor  v.  Thomson.     II 

Pordagc  v.   Cole.     II 

Potter  V.  Boston  Ice  Co. 

Pottlitzer  Bros.  Fruit  Co.  v. 
Sanders 

Poussard  v.  Spiers  &  Pond. 
II 

Powell  V.  Duff 

Power  V.  Adams.     II 


1543 

906 

986 

235 

1597 

1004 

475 


1131 

1719 
988 

1044 

925 

1254 
319 
341 

324 

697 

1664 

393 

1390 
1595 


I052 

769 
I4S6 

II-'O 

189 


226 

1222 

744 

1535 


Note. — Numeral  II  after  name  indicates  that  case  is  in  \'oIume  II. 


XVIU 


TABLE   OF   CASES. 


PAGE 

PAGE 

Powers  V.  Tolhurst 

500 

Ritchie  v.   Atkinson.     II 

1207 

Powlett  V.  Devon 

936 

Rivet  V.  Leneret 

379 

Presbyterian    Church    of 

AI- 

Roberts  v.   Brett.     II 

1078 

bany.  The.  v.  Cooper 

386 

Roberts  v.  Kelly 

794 

President,  Managers  and  Com- 

Roberts v.  Pillow 

697 

pany    of    the    Delaware    & 

Robertson  v.  Coleman 

28 

Hudson    Canal    Co.    v. 

The 

Robinson  v.  Harman.     II 

1388 

Pennsylvania  Coal  Co. 

II 

II3I 

Robinson  v.    M'Kinnell.     II 

1614 

Preston  v.   Kingston.     II 

1 142 

Rochester    Lantern    Co.,    The, 

Price  V.  Chicago,  Santa  Fe  & 

V.  The  Stiles  &  Parker  Press 

California  Railroad  Co. 

II 

1 123 

Co.     II 

T412 

Price  V.  Easton 

771 

Roe  V.  Haugh.     II 

1516 

Price  V.  Nixon.     II 

I0I2 

Rogers  &  Brother  v.  Rogers 

459 

Prosser  v.   Evans.     II 

990 

Rogers  v.  Rogers  &  Brother 

459 

Purccll  V.  Hatch 

601 

Rollins  V.  Marsh 

451 

Quick  V.  Wheeler 

271 

Rolt  V.  Cozens.     II 

1 165 

Rae  V.  Hackett.     II 

1069 

Roper  V.    Lendon.     II 

1 129 

Raffles  V.   Wichelhaus 

7 

Roscorla  v.  Thomas 

597 

Ramsgate  Victoria  Hotel 

Co. 

Roulston  V.  Bradford 

606 

V.  Alontefiore 

278 

Routledge  v.  Grant 

239 

Ranay  v.  Alexander.     II 

1020 

Royal  V.  Gunning 

556 

Rand  v.  Kent 

686 

Royal  Insurance  Co.,   The,  v. 

Rann  v.  Hughes 

336 

Brown.     II 

1699 

Ran  V.  Durnherr 

847 

Ruggles  V.   Hull.     II 

1616 

Rawson  v.   Johnson.     II 

1153 

Rupley  V.  Daggett 

13 

Rawstorne   v.    Gandell.     II 

979 

Sanders     v.     Pottlitzer     Bros. 

Raymond   v.    Minton.     II 

1077 

Fruit  Co. 

226 

Read  v.  Snevily 

648 

Sargent  v.   Kingsbury.     II 

1785 

Reed  v.  Flight    ■ 

661 

Saunders  v.  Hawkes  and  Wife 

625 

Reeve  v.  Beaumont 

657 

Saunders  v.  Saunders 

843 

Rehwoldt  v.  Wehrli.     II 

1097 

Schenectady  Stove  Co.  v.  Hol- 

Reif  V.  Paige 

506 

brook 

223 

Rennie  v.  Hoare.     II 

1 175 

Schipper  v.  Chism.     II 

1118 

Renwick  v.  Jamieson 

384 

Schreyer  v.  Vanderbilt 

454 

Revett  V.  Hudson 

745 

Scotson  V.  Pegg 

475 

Reynolds  v.  Bridge.     II 

1450 

Scott  V.  Atchison.     II 

1506 

Reynolds  v.   Pinhowe 

393 

Scott  V.  Wallis.     II 

1 103 

Reynolds  v.  Withers.     II 

1309 

Scully  V.   Kirkpatrick.     II 

1681 

Rice  V.  Wh-at 

821 

Sears  v.  King 

380 

Richards  v.  Davis  Sewing 

Ma- 

Semmes  v.  Hartford  Insurance 

chine  Co. 

176 

Co.     II 

1245 

Richards   v.    Heather.     I] 

993 

Settree  v.  Atkinson 

489 

Riddle    v.    Plowman    & 

Mc- 

Seymour  v.    Phillips   &   Colby 

Lane.     II 

1005 

Construction  Co.     II 

1254 

Ripley  V.  McClure.     II 

1263 

Seyms  v.   New  York  Life  In- 

Risley v.  The  Phenix  Bank  of 

surance  Co.     II 

1249 

the  City  of  New  York 

925 

S          r.  F        ,  D 

149 

Note.— Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


TABLE   OF   CASES. 


Shadwell  v.  Shadwell 
Shaw  V.   Brauer 
Shee  V.  Littlefield 
Sheeren  v.  Moses.     II 
Sheffield  v.   Strong 
Shepard  v.  Carpenter 
Shervvin  v.   Fletcher 


Shore  v. 

bans. 
Short  V. 
Shuey  v. 
Sibree  v. 


The  Duke  of  St. 

II 

Stone.     II 

United  States 

Tripp 


Al- 


Sibthorp  v.  Brunei.     II 

Sidenham  &  Worlington's  Case 

Sidway  v.  Hamer 

Silliman  v.  United  States.     II 

Simeon  v.  Wade 

Simpson  v.  Hughes 

Skeate  v.   Beale.     II 

Slade  V.  Bagge 

Slingsby's   Case.     II 

Smith  and   Hoskins   v.    Lind- 
say.    II 

Smith  and  Smith's  Case 

Smith  V.  Algar 

Smith  V.   Arend 

Smith  v.  Bascom 

Smith  V.  Beecham  and  Smith. 
II 

Smith  V.  Hawes 

Smith  V.    Monteith 

Smith  V.  Wilks.     II 

Snedaker  v.  Fitch  and  Jones 

Snevily  v.  Read 

Sorsbie  v.  Park.     II 

Southeastern     Railway     Co., 
The,  V.  The  London,  Chat- 
ham and  Dover  Railway  Co. 
II. 

Sowles  V.  Bellows 

Spaulding  v.  Hale.     II 

Speir  V.  Foley.     II 

Spence  v.  Healey.     II 

Spencer   and    Grant   v.    Whit- 
ney.    II 

Spiers    &    Pond   v.    Poussard. 
II 


PACK  I'.\GE 

469       Spiller  v.  Westlake.     II  1383 

269       Spycher  v.  Werner.     II  151 1 
640      Statham  v.  New  York  Life  In- 

1169          surance  Co.     II  1249 

586       Steeds  v.   Steeds.     II  1564 

204       Stemmons  v.  Talbott  361 

391       Stevens  v.  Webb.     II  1016 

Stevenson,    Jaques    &    Co.    v. 

1 171           McLean  288 

1261       Stewart  v.    Stone.     II  1762 
249       Stiles    &    Parker    Press    Co., 
398          The,  v.  The  Rochester  Lan- 

1379          tern  Co.     II  1412 

589       Stilk  V.  Myrick  436 

363       Stoddard  v.    Ham  23 
1780       Stokes  V.  Mackay  and  De  Cas- 

522           tro.     II  1300 

231       Stone  V.   Short.     II  1261 

1774       Stone  V.   Stewart.     II  1762 
394       Stone   V.    The    Imperial    Loan 

961           Co.  311 

Storey  v.  Littlefield  903 

1642       Strong  V.  Sheffield  586 
338       Stubbs  v.  The  Holywell  Rail- 

S19          way  Co.  944 

487       Sturlyn  v.  Albany  340 

39       Sughrue  v.  Hills.   TI  1695 
Summers  v.  Hibbard,  Spencer, 

969           Bartlett  &   Co.     II  1767 
342       Superintendent    and    Trustees 
494           of  Public  Schools  of  the  City 
1360           of  Trenton,  The,  v.  Bennett 

45           and  Carlisle.     II  1741 

648       Taintor  z'.   Taylor.     II  1667 

963       Talbott  z'.    Stemmons  361 

Tallman  v.  Hoey  930 

Tayloe  v.  The  Merchants'  Fire 

Insurance  Co.  of  Baltimore  107 

1439       Ta3dor  v.   Brewer  3 

557       Taylor  v.  Caldwell.     II  1703 

981        Taylor  v.   Hilary.     II  1467 

1620       Taylor  v.  Jones  74 

1469       Taylor  v.    Taintor.     II  1667 

Templeton  v.  Cline  &  Co.  554 

1689       Terry  v.   Duntze.     II  1353 

Thatcher  z'.    Ordinary  of  the 

1222           State  of  New  Jersey  723 


Note. — Numeral  II  after  name  indicates  that  case  is  in  Volume  II. 


XX 


TABLE   OF   CASES. 


Thomas  v.  Cadwallader.  II  1033 
Thomas  v.  Roscorla  597 

Thomas  v.  Thomas  3H 

Thompson  v.  Marquis  of  Bute. 

II.  "692 

Thompson  v.  Niggley.     II  I793 

Thomson  v.  Poor  &  Poor.  II  i486 
Thorn  v.  City  Rice  Mills.  II  loio 
Thor.ihill  v.   Neats.     II  1471 

Thorp  V.   Thorp.     II  1022 

ThurnoU  v.  Balbirnie.     II  1126 

Tillman  v.  Parsons.     II  I543 

Tinn  v.  Hoffmann  &  Co.  52 

Tisdale's   Case  378 

Todd  V.  Weber  814 

Tolhurst  V.  Powers  500 

Tomlinson  v.  Nassoiy.  II  i57i 
Tompson  v.   Noel.     II  1254 

Traders'  National  Bank,  The, 

V.   Parker  582 

Trevor  &  Colgate   v.  Wood  & 

Cull  en  138 

Tripp  7'.   Sibree  398 

Trippet  v.   Birks.     I\  noi 

Trueman  v.  Fenton  621 

Tully  V.   Howling.     H  1186 

Turner  v.   Vrooman  803 

Turner  v.  Watson  617 

Tuttle  V.  Brill  895 

Tweddle  v.  Atkinson  787 

Tyndall  v.   White.     II  995 

Union    Locomotive    and    ^x 
press  Co.,  The,  v.  The  Eriv^ 
Railway  Co.     II  ^636 

United   States   v.    Behan.     II     1420 
United   States  v.   Shuey  249 

United  States  v.  Silliman.     II  1780 
Upton  V.   Pindar.     II  1664 

Valentine  v.   Foster  658 

Vanderbilt  v.  Schreyer  454 

Van  Mierop  &  Hopkins  v.  Pil- 

lans  &  Rose  324 

Van  Tienhoven  &  Co.  v.  Byrne 

&  Co.  260 

Victors  V.  Davies  599 

Vouillon  V.    Gibbons.     II  1580 

Voyel  v.  Dockett  591 


PAGE 

Vrooman  v.  Turner  803 

Vyse  V.  Batterbury.     II  nil 

Vyse  V.  Wakefield.     II  1088 

Wade  V.  Simeon  522 

Wakefield  v.  Vyse.     II  1088 

Wakeman  v.   The  Wheeler  & 

Wilson    Manufacturing    Co. 

II  1427 
Walker  v.   The  Bradford   Old 

Bank  932 

Walker  v.  Wharton.     II  15 16 

Wallis  V.  Scott.     II  1 103 

Walmesley     and     Nelstrop  v. 

Cooper.     II  1576 

Ward  V.  Noble.     II  1476 

Ware  v.  Chappell.     II  1351 

Warren  z>.  Lynch  691 
Watkins     v.      First     National 

Bank  173 
Watkinson  v.  Makin.     II  T095 
Watson  v.   Clarke.     II  1114 
Watson  V.  Turner  617 
Watts  V.  Clifford.     II  1751 
Waugh  V.   Morris.     II  1590 
Webb  V.   Norton.     II  1008 
Webb  V.   Stevens.     II  1016 
Weber  v.  Todd  814 
Weeks   v.    Maillardet  739 
Wehrli   v.    Rehwoldt.     II  1097 
Welch  V.   Mandeville  903 
Wells  V.  Calnan.     II  11 82 
Werner  v.  Humphreys  296 
Werner  v.   Spycher.     II  151 1 
Westlake  v.  Spiller.     II  1383  ' 
Wharton  v.   Walker.     II  1516 
Wheat  V.  Rice  821 
Wheatjey  v.   Low  342 
^Vheeler  v.  Quick  271 
Wheeler   &   Wilson   Manufac- 
.uring   Co.,    The,    v.    Wake- 
man.     II  1427 
Whirjple  v.  Mellen     .  772 
White  V.  Bluett  355 
White  V.  Corlies  and  Tift  170 
White  V.  Drake.     II  1018 
White  V.    Tyndall.     II  995 
Whitney  v.  Nolan.     II  1116 


Note. —  Numeral  II  after  name  indicates  that  .^ase  is  in  Volume  II. 


TABLE   OF   CASES. 


XXI 


Whitney      t'.       Spencer      and 

Grant.  II  1689 
Wichelhaus  z\  Raffles  7 
Wickham  z'.  Xenos  703 
Wilkinson  z:  Byers  395 
Wilkinson  v.  Oliveira  348 
Wilks  z:  Smith.  II  1360 
Williams  v.  Bay  818 
Williams  v.  Bradford.  II  1215 
Williams  v.  Carvvardinc  4 
Williamson  and  Wife  v.  Losh  335 
Williamson  z'.  Chamberlain  942 
Williamson  v.  Clements  343 
Wilson  and  Wife  v.  Farrow  955 
Wilson  V.  Coupland.  II  1527 
Witham  v.  The  Great  North- 
ern Railway  Co.  196 
Withers  v.   Reynolds.     II  T309 


Wood  &  Cullen  v.   Trevor  & 

Colgate 
Wood  &  Wood  V.  Moriarty 
Woodrow  V.  Glazebrook.     II 
Woodworth  v.  Morse.     II 
Woodward  v.   Parsons 
Worlington  &  Sidenham's  Case 
Wrench  v.  Hyde 
Wright  V.  Co'ok 
Wright  t'.   Hall.     II 
Wright   V.    Lock.     II 
Wright  z'.   Norrington. 
Wyman  v.   Bartlett 
Wyman  v.  Mills 
Xenos  v.  Wickham 
Yerrington   v.    Greene. 
Young  V.  Jonassohn. 


II 


II 
II 


138 

830 

1147 

1790 

9o5 

589 

2S7 

541 

1725 

1 03 1 

1 190 

4.37 

636 

703 

1747 

1 179 


Note. — Numeral  II  after  name  indicates  that  case  is  in  Volum.;  II. 


CASES  ON  CONTRACTS. 


F»ART    I. 

FORMATION    OF   CONTRACTS. 


CHAPTER  I. 

SIMPLE    CONTRACTS. 

Section  I. — Offer  and  Acceptance. 

(a)  Necessity  of  intention  to  create  a  legal  obligation. 


JACOB    F.   KELLER   v.  JACOB    HOLDERMAN. 

In  the  Supreme  Court  of  Michigan,   May  12,   1863. 
\^Reported  i)i  11  Michigan  Reports  24S.] 

Error  to  Berrien  Circuit. 

Action  by  Holderman  against  Keller  upon  a  check  for  $300,-' 
drawn  by  Keller  upon  a  banker  at  Niles,  and  not  honored. 
The  cause  was  tried  without  a  jury,  and  the  Circuit  Judge  found 
as  facts,  that  the  check  was  given  for  an  old  silver  watch,  worth 
about  $15,  which  Keller  took  and  kept  till  the  day  of  trial,  when 
he  offered  to  return  it  to  the  plaintiff,  who  refused  to  receive  it. 
The  whole  transaction  was  a  frolic  and  banter — the  plaintiff  not 
expecting  to  sell,  nor  the  defendant  intending  to  buy  the  watch 
at  the  sum  for  which  the  check  was  drawn.  The  defendant 
when  he  drew  the  check  had  no  money  in  the  banker's  hands, 
and  had  intended  to  insert  a  condition  in  the  check  that  would 
prevent  his  being  liable  upon  it  ;  but  as  he  had  failed  to  do  so, 

'  Although  not  an  action  upon  a  simple  contract,  the  case  is  printed  in 
this  collection,  as  no  question  of  negotiable  paper  was  involved  in  the 
decision. — Ed. 


2  KELLER   V.    IIOLDERMAN.  [CHAP.  I. 

and  had   retained  the  watch,   the  Judge  held  him   liable,   and 
judgment  was   rendered  against   him    for   the  amount   of   the 

check. 

IV.  A.  Moore  for  plaintiff  in  error, 

James  Brown  for  defendant  in  error. 

Martin  Ch.J.:  When  the  Court  below  found  as  a  fact  that 
"  the  whole  transaction  between  the  parties  was  a  frolic  and  a 
banter,  the  plaintiff  not  expecting  to  sell,  nor  the  defendant  in- 
tending to  buy  the  watch  at  the  sum  for  which  the  check  was 
drawn,"  the  conclusion  should  have  been  that  no  contract  was 
ever  made  by  the  parties,  and  the  finding  should  have  been  that 
no  cause  of  action  existed  upon  the  check  to  the  plaintiff. 

The  judgment  is  reversed,  with  costs  of  this  Court  and  of  the 
Court  below.' 

The  other  Justices  concurred. 

'  Mere  words  without  any  intention  corresponding  to  them,  will  not  make 
a  marriage  or  any  other  civil  contract.  But  the  words  are  the  evidence  of 
such  intention,  and  if  once  exchanged,  it  must  be  clearly  shown  that  both 
parties  intended  and  understood  that  they  were  not  to  have  effect.  In  this 
case  the  evidence  is  clear  that  no  marriage  was  intended  by  either  party  ; 
that  it  was  a  mere  jest  got  up  in  the  exuberance  of  spirits  to  amuse  the 
company  and  themselves.  If  this  is  so,  there  was  no  marriage.  On  this 
part  of  the  case  I  have  no  difficulty. — Zabriskie,  C,  McClurg  v.  Terry, 
21  N.  J.  Eq.  225,  227. 

The  offer  of  the  defendant,  upon  which  the  plaintiff  relies,  was  to  give 
the  plaintiff  $40  for  the  cow  if  he  would  deliver  her  to  the  defendant  in  as 
good  condition  as  she  was  in  when  Sleeper  bought  her.  .  .  .  The  de- 
fendant and  Sleeper  were  in  litigation  about  the  cow,  and  the  plaintiff  was 
in  the  employment  of  Sleeper  at  the  time  when  the  parties  met.  Their  con- 
versation commenced  in  the  way  of  bantering  between  them  about  the  im- 
portance of  that  litigation,  and  not  in  the  way  of  making  a  trade  in  the  usual 
course  of  business.  From  the  testimony  referred  to,  it  appears  that  some 
of  the  witnesses,  who  were  there  and  heard  the  conversation,  when  asked 
whether  the  conversation  was  serious  or  not,  answered  that  they  could  not 
tell,  but  could  tell  what  was  said.  We  think  that  the  circumstances  and 
this  testimony  did  tend  to  show  that  the  defendant's  offer  was  intended  and 
understood  to  be  merely  jocose,  and  not  in  earnest,  and  that  the  court  erred 
in  not  submitting  to  the  jury  to  find  how  the  parties,  in  fact,  intended  and 
understood  it,  in  that  respect.— Wheeler,  J.,  Bruce  v.  Bishop,  43  Vt.  161, 
163-164. 

An  appointment  between  two  friends  to  go  out  for  a  walk  or  to  read  a 
book  together  is  not  an  agreement  in  the  legal  sense  :  for  it  is  not  meant  to 
produce,  nor  does  it  produce,  any  new  legal  duty  or  right,  or  any  change  in 
existing  ones.  Nothing  but  the  absence  of  intention  seems  to  prevent  a 
contract  from  arising  in  many  cases  of  this  kind.  A.  asks  B.  to  dinner,  and 
B.  accepts.  Here  is  proposal  and  acceptance  of  something  to  be  done  by  B. 
at  A.'s  request— namely,  coming  to  A.'s  house  at  the  appointed  time,  and 
the  trouble  and  expense  of  doing  this  are  ample  consideration  for  A.'s 
promise  to  provide  a  dinner.  Why  is  A.  not  legally  bound  to  have  meat 
and  drink  ready  for  B.,  so  that  if  A.  had  forgotten  his  invitation  and  gone 


SEC.  la.]  TAYLOR  v.   BREWER. 


TAYLOR    AND    Another,     Assignees    of    Walsh,    a    Bank- 
rupt, V.   BREWER    and    Others. 

In  the  King's  Bench,  May  8,  1813. 

\Reported  in  i  Maule  iSn>  Selwyn  290.] 

Assumpsit  to  recover  a  compensation  for  work  done  by  the 
bankrupt.  The  defendants  composed  a  committee  for  the  man- 
agement of  the  sale  of  lottery  tickets,  and  the  bankrupt  was 
employed  in  going  backward  and  forward  upon  their  business. 
The  plaintiffs  founded  their  claim  to  compensation  on  the  fol- 
lowing resolution  of  the  committee  :  January  4th,  1810,  at  a 
meeting,  etc.,  present.  Brewer,  etc.,  Resolved,  that  any  service 
to  be  rendered  by  Walsh  shall,  after  the  third  lottery  be  taken 
into  consideration^  and  such  remuneration  be  made  as  shall  be  deemed 
rights  Lord  Ellenborough,  C.J.,  was  of  opinion  at  the  trial, 
that  under  this  resolution  it  was  optional  in  the  committee  to 
remunerate  the  bankrupt  or  not,  according  as  they  should  think 
right,  and  therefore  nonsuited  the  plaintiffs. 

Park  moved  to  set  aside  the  nonsuit,  on  the  ground  that  the 
bankrupt  was  entitled  to  some  recompense  ;  inasmuch  as  an 
agreement  with  a  person  that  he  should  do  work,  and  should 
have  what  is  right  for  it,  did  not  import  that  he  should  have 
nothing  for  his  trouble  if  his  employer  should  be  so  minded, 
but  that  he  should  have  a  reasonable  reward  :  it  should  have 
been  left  therefore  to  the  jury  to  consider  what  was  reasonable, 
as  was  done  in  Peacock  v.  Peacock.^ 

Lord  Ellenborough,  C.J.  In  that  case  the  defendant  ex- 
pressly told  the  plaintiff  that  he  should  have  a  share  in  the  busi- 

elsewhere  B.  should  have  a  right  of  action  ?  Only  because  no  legal  bond 
was  intended  by  the  parties.  It  might  possibly  be  said  that  these  are  really 
cases  of  contract,  and  that  only  social  usage  and  the  trifling  amount  of 
pecuniary  interest  involved  keep  them  out  of  courts  of  justice.  But  I  think 
Savigny's  view,  which  is  here  adopted,  is  the  better  one.  There  is  not  a 
contract  which  it  would  be  ridiculous  to  enforce,  but  the  original  proposal 
is  not  the  proposal  of  a  contract. — Pollock  on  Contracts,  4th  ed.,  2. — Ed. 

^  Ryan,  one  of  the  plaintiffs  below,  had  testified  that  "  we  had  no  contract 
for  this  work,  and  before  we  began  it  I  had  a  conversation  with  Mr.  Hurl- 
burt  about  it.  I  wanted  to  know  what  we  would  be  paid  for  it,  and  he  said 
that  Mr.  Vaughan  would  do  what  was  right."  This  was  claimed  to  be  a 
contract  for  reasonable  compensation.  It  was  for  the  jury  to  say  whether 
the  conversation  was  with  a  contractual  intent  or  not.  The  court  had  no 
right  to  assume  as  a  matter  of  law  that  it  was  not,  and  refuse  a  charge  on 
that  aspect  of  the  case. — Lamar,  J.,  Henderson  Bridge  Co.  v.  McGrath, 
134  U.  S.  260,  275-276. — Ed. 

"  2  Camp.  N.  P.  C.  45. 


4  WILLIAMS   V.    CARWARDINE.  [CHAP.  I. 

ness,  leaving  only  unsettled  what  paiticular  share  he  was  to 
have  :  but  here,  I  own  it  struck  me,  was  an  engagement  accepted 
by  the  bankrupt  on  no  definite  terms,  but  only  in  confidence 
that  if  his  labor  deserved  anything  he  should  be  recompensed 
for  it  by  the  defendants.  This  was  throwing  himself  upon  the 
mercy  of  those  with  whom  he  contracted  ;  and  the  same  thing 
does  not  unfrequently  happen  in  contracts  with  several  of  the 
departments  of  government. 

Grose,  J.  I  consider  the  resolution  to  import  that  the  com- 
mittee were  to  judge  whether  any  or  what  recompense  was 
right. 

Le  Blanc,  J.  It  seems  to  me  to  be  merely  an  engagement 
of  honor. 

Bayley,  J.  The  fair  meaning  of  the  resolution  is  this,  that 
it  was  to  be  in  the  breast  of  the  committee  whether  he  was  to 
have  anything,  and  if  anything,  then  how  much. 

Rule  refused. 


MARY  ANN   WILLIAMS  v.  WILLIAM   CARWARDINE. 

In  the  King's  Bench,  April  i8,  1833. 

[Reported  in  4  Barneivall  &^  AdolpJms  621.] 

Assumpsit  to  recover ;^2o,  which  the  defendant  promised  to 
pay  to  any  person  who  should  give  such  information  as  might 
lead  to  a  discovery  of  the  murder  of  Walter  Carvvardine.  Plea, 
general  issue.  At  the  trial  before  Park,  J.,  at  the  last  spring 
assizes  for  the  county  of  Hereford,  the  following  appeared  to 
be  the  facts  of  the  case  :  One  Walter  Carwardine,  the  brother 
of  the  defendant,  was  seen  on  the  evening  of  March  24th,  1831, 
at  a  public-house  at  Hereford,  and  was  not  heard  of  again  till 
his  body  was  found  on  April  12th  in  the  river  Wye,  about  two 
miles  from  the  city.  An  inquest  was  held  on  the  body  on  April 
13th  and  the  following  days  till  the  19th  ;  and  it  appearing  that 
the  plaintiff  was  at  a  house  with  the  deceased  on  the  night  he 
was  supposed  to  have  been  murdered,  she  was  examined  before 
the  magistrates,  but  did  not  then  give  any  information  which 
led  to  the  apprehension  of  the  real  offender.  On  April  25th  the 
defendant  caused  a  hand-bill  to  be  published,  stating  that  who- 
ever would  give  such  information  as  should  lead  to  a  discovery 
of  the  murder  of  Walter  Carwardine  should,  on  conviction,  re- 
ceive a  reward  of  ^20  ;  and  any  person  concerned  therein,  or 
privy  thereto  (except  the  party  who  actually  committed  the 
offence),  should  be  entitled  to  such  reward,  and  every  exertion 


SEC.  la.]  WILLIAMS  V.   CARWARDINE.  5 

used  to  procure  a  pardon  ;  and  it  then  added,  that  information 
was  to  be  given,  and  application  for  the  above  reward  was  to 
be  made  to  Mr.  William  Carwardine,  Holrt^er,  near  Hereford. 
Two  persons  were  tried  for  the  murder  at  the  summer  assizes 
1831,  but  acquitted.  Soon  after  this,  the  plaintiff  was  severely- 
beaten  and  bruised  by  one  Williams,  and  on  August  23d,  1831, 
believing  she  had  not  long  to  live,  and  to  ease  her  conscience, 
she  made  a  voluntary  statement,  containing  information  which 
led  to  the  subsequent  conviction  of  Williams.  Upon  this  evi- 
dence it  was  contended,  that  as  the  plaintiff  was  not  induced 
by  the  reward  promised  by  the  defendant  to  give  evidence,  the 
law  would  not  imply  a  contract  by  the  defendant  to  pay  her  the 
;^2o.  The  learned  Judge  was  of  opinion,  that  the  plaintiff, 
having  given  the  information  which  led  to  the  conviction  of  the 
murderer,  had  performed  the  condition  on  which  the;^2o  was 
to  become  payable,  and  was  therefore  entitled  to  recover  it  ; 
and  he  directed  the  jury  to  find  a  verdict  for  the  plaintiff,  but 
desired  them  to  find  specially  whether  she  was  induced  to  give 
the  information  by  the  offer  of  the  promised  reward.  The  jury- 
found  that  she  was  not  induced  by  the  offer  of  the  reward,  but 
by  other  motives.' 

Curwood  now  moved  for  a  new  trial.  There  was  no  promise 
to  pay  the  plaintiff  the  sum  of  _;^2o.  That  promise  could  only 
be  enforced  in  favor  of  persons  who  should  have  been  induced 
to  make  disclosures  by  the  promise  of  reward.  Here  the  jury 
have  found  that  the  plaintiff  was  induced  by  other  motives  to 
give  the  information.  They  have,  therefore,  negatived  any 
contract  on  the  part  of  the  defendant  with  the  plaintiff. 

Denman,  C.J.  The  plaintiff,  by  having  given  information 
which  led  to  the  conviction  of  the  murderer  of  Walter  Car- 
wardine, has  brought  herself  within  the  terms  of  the  advertise- 
ment, and  therefore  is  entitled  to  recover. 

LiTTLEDALE,  J.  The  advertisement  amounts  to  a  general 
promise,  to  give  a  sum  of  money  to  any  person  who  shall  give 
information  which  might  lead  to  the  discovery  of  the  offender. 
The  plaintiff  gave  that  information. 

Parke,  J.  There  was  a  contract  with  any  person  who  per- 
formed the  condition  mentioned  in  the  advertisement. 

Patteson,  J.  I  am  of  the  same  opinion.  We  cannot  go  into 
the  plaintiff's  motives. 

Rule  refused. 

1  The  jury  will  probably  find  that  the  ;,^2o  was  not  the  motive.  We  may, 
I  think,  assume  that  it  was  not.  The  motive  was  the  state  of  her  own  feel- 
ings.— Parke,  J.,  Williams  v.  Carwardine.  5  C.  &  P.  566,  572.— En. 


6  HEWITT   V.   ANDERSON.  [CHAP.  I. 

FRANK    HEWITT   v.  JOHN    ANDERSON  et  al. 

In  the  Supreme  Court  of  California,  October,  1880. 

[Reported  in  56  California  Reports  476.] 

Appeal  from  a  judgment  for  the  defendants,  and  from  an 
order  denying  a  new  trial,  in  the  Eighteenth  District  Court, 
County  of  San  Bernardino.     McNealy,  J. 

Paris  6^  Allen  and  H.  Goodcell  for  appellant. 

John  W.  Satterwhite  and  Byron  Waters  for  respondents. 

Sharpstein,  J.  The  defendant  signed  and  caused  to  be  pub- 
lished an  instrument,  of  which  the  following  is  a  copy  : 

"  We,  the  undersigned,  promise  and  agree  to  pay  the  sum  set 
opposite  our  names  for  the  arrest  and  conviction  of  any  person 
who  has,  within  the  past  six  months,  maliciously,  and  with  in- 
tent to  commit  arson,  burned  any  building  in  the  town  of  San 
Bernardino,  or  who  may  in  the  future,  with  said  intent,  set  fire 
to,  attempting  to  burn,  or  shall  burn,  or  cause  to  be  burned, 
any  building  in  the  limits  of  said  town."  Opposite  to  the  name 
of  each  of  the  defendants  a  certain  amount  is  set,  and  the 
aggregate  of  those  amounts  is  $900,  for  which  the  plaintiff  sues. 
The  findings  of  the  Court,  with  one  exception,  are  in  favor  of 
the  plaintiff.  That  one  is  as  follows  :  "  That  none  of  the  acts 
of  plaintiff  were  done  with  a  view  to  obtaining  said  reward,  or 
any  part  thereof,  but  all  of  said  acts  were  done  without  any 
intention  of  claiming  said  reward,  or  any  part  thereof." 

If  this  finding  is  justified  by  the  evidence,  the  judgment  ren- 
dered in  favor  of  defendants  cannot  be  disturbed.  The  evi- 
dence upon  this  point  is  conflicting.  The  plaintiff,  on  the  trial, 
testified  that  he  did  do  the  acts  upon  which  he  bases  his  claim 
to  the  reward  with  a  view  to  obtaining  it.  On  the  other  hand, 
there  was  evidence  introduced  by  the  defendants  which  tended 
to  prove  that  the  plaintiff  had  stated,  under  oath,  that  he  had 
not  expected  any  reward.  In  view  of  that  conflict,  we  would 
not  disturb  a  finding  either  way.  And  we  are  satisfied,  that 
under  that  finding  the  plaintiff  cannot  recover  in  this  action. 
If  he  did  not  do  the  acts  upon  which  he  now  bases  his  right  to 
recover,  with  the  intention  of  claiming  the  reward  in  the  event 
of  his  accomplishing  what  would  entitle  him  to  it,  he  cannot 
recover  it.  If  he  had  not  known  that  a  reward  had  been  offered,  he 
might,  upon  the  authority  of  some  cases,  recover.  But  we  are 
not  aware  of  any  case  in  which  it  has  been  held  that  a  party,  after 
disclaiming  any  intention  to  claim  a  reward,  could  recover  it. 

Judgment  and  order  affirmed. 

.Myrick,  J.,  and  Thornton,  J.,  concurred. 


SEC.  li>.]  RAFFLES   Z'.    WICIIELIIAUS.  7 

(/^)   £fea  of  Mistake. 

RAFFLES   V.  WICHELHAUS    and  Another. 

In  the  Exchequer,  January  20,  1864. 

[Reported  in  2  Hurls  tone  &^  Coltman  906.  J 

Declaration.  For  that  it  was  agreed  between  the  plaintiff 
and  the  defendants,  to  wit,  at  Liverpool,  that  the  plaintiff 
should  sell  to  the  defendants,  and  the  defendants  buy  of  the 
plaintiff,  certain  goods,  to  wit,  125  bales  of  Surat  cotton,  guar- 
anteed middling  fair  merchant's  Dhollorah,  to  arrive  ex  Peer- 
less from  Bombay  ;  and  that  the  cotton  should  be  taken  from 
the  quay,  and  that  the  defendants  would  pay  the  plaintiff  for 
the  same  at  a  certain  rate,  to  wit,  at  the  rate  of  \']\d.  per  pound, 
within  a  certain  time  then  agreed  upon  after  the  arrival  of  the 
said  goods  in  England.  Averments  :  that  the  said  goods  did 
arrive  by  the  said  ship  from  Bombay  in  England,  to  wit,  at 
Liverpool,  and  the  plaintiff  was  then  and  there  ready  and  will- 
ing and  offered  to  deliver  the  said  goods  to  the  defendants,  etc. 
Breach  :  that  the  defendants  refused  to  accept  the  said  goods 
or  pay  the  plaintiff  for  them. 

Plea.  That  the  said  ship  mentioned  in  the  said  agreement 
was  meant  and  intended  by  the  defendants  to  be  the  ship  called 
the  Peerless,  which  sailed  from  Bombay,  to  wit,  in  October  ; 
and  that  the  plaintiff  was  not  ready  and  willing,  and  did  not 
offer  to  deliver  to  the  defendants  any  bales  of  cotton  which 
arrived  by  the  last-mentioned  ship,  but  instead  thereof  was 
only  ready  and  willing,  and  offered  to  deliver  to  the  defendants 
125  bales  of  Surat  cotton  which  arrived  by  another  and  differ- 
ent ship,  which  was  also  called  the  Peerless,  and  which  sailed 
from  Bombay,  to  wit,  in  December. 

Demurrer,  and  joinder  therein. 

Milward  in  support  of  the  demurrer.  The  contract  was  for 
the  sale  of  a  namber  of  bales  of  cotton  of  a  particular  descrip- 
tion, which  the  plaintiff  was  ready  to  deliver.  It  is  immaterial 
by  what  ship  the  cotton  was  to  arrive,  so  that  it  was  a  ship 
called  the  Peerless.  The  words  "  to  arrive  ex  Peerless,"  only 
mean  that  if  the  vessel  is  lost  on  the  voyage,  the  contract  is  to 
be  at  an  end.  [Pollock,  C.B.  It  would  be  a  question  for  the 
jury  whether  both  parties  meant  the  same  ship  called  the  Peer- 
less.] That  would  be  so  if  the  contract  was  for  the  sale  of  a 
ship  called  the  Peerless  ;  but  it  is  for  the  sale  of  cotton  on 
board  a  ship  of  that  name.  [Pollock,  C.B.  The  defendant 
only  bought  that  cotton  which  was  to  arrive  by  a   particular 


8  FOSTER  V.    MACKINNON.  [CHAP.  I. 

ship.  It  may  as  well  be  said,  that  if  there  is  a  contract  for  the 
purchase  of  certain  goods  in  warehouse  A.,  that  is  satisfied  by 
the  delivery  of  goods  of  the  same  description  in  warehouse  B.] 
In  that  case  there  would  be  goods  in  both  warehouses  ;  here  it 
does  not  appear  that  the  plaintiff  had  any  goods  on  board  the 
other  Peerless.  [Martin,  B.  It  is  imposing  on  the  defendant 
a  contract  different  from  that  which  he  entered  into.  Pollock, 
C.B.  It  is  like  a  contract  for  the  purchase  of  wine  coming 
from  a  particular  estate  in  France  or  Spain,  where  there  are 
two  estates  of  that  name.]  The  defendant  has  no  right  to  con- 
tradict by  parol  evidence  a  written  contract  good  upon  the  face 
of  it.  He  does  not  impute  misrepresentation  or  fraud,  but  only 
says  that  he  fancied  the  ship  was  a  different  one.  Intention  is 
of  no  avail,  unless  stated  at  the  time  of  the  contract.  [Pol- 
lock, C.B.  One  vessel  sailed  in  October  and  the  other  in 
December.]     The  time  of  sailing  is  no  part  of  the  contract. 

Mellish  (Cohen  with  him)  in  support  of  the  plea.  There  is 
nothing  on  the  face  of  the  contract  to  show  that  any  particular 
ship  called  the  Peerless  was  meant  ;  but  the  moment  it  appears 
that  two  ships  called  the  Peerless  were  about  to  sail  from  Bom- 
bay there  is  a  latent  ambiguity,  and  parol  evidence  may  be 
given  for  the  purpose  of  showing  that  the  defendant  meant  one 
Peerless  and  the  plaintiff  another.  That  being  so,  there  was 
no  consensus  ad  idem,  and  therefore  no  binding  contract,  He 
was  then  stopped  by  the  Court. 

Per  Curiam.'     There  must  be  judgment  for  the  defendants. 

Judgment  for  the  defendants. 


FOSTER   V.   MACKINNON. 

In  the  Common  Pleas,  July  5,  1869. 
[Reported  in  Law  Reports,  4  Common  Pleas  704.] 

Action  by  indorsee  against  indorser  on  a  bill  of  exchange  for 
;^3ooo  drawn  on  November  6th,  ,1867,  by  one  Cooper  upon  and 
accepted  by  one  Callow,  payable  six  months  after  date,  and 
indorsed  successively  by  Cooper,  the  defendant,  J.  P.  Parker, 
T.  A.  Pooley  &  Co.,  and  A.  G.  Pooley,  to  the  plaintiff,  who 
became  the  holder  for  value  (having  taken  it  in  part-payment 
of  a  debt  due  to  him  from  A.  G.  Pooley)  before  it  became  due, 
and  without  notice  of  any  fraud.' 

>  Pollock,  C.B.,  Martin, B..  and  Pigott,  B.  '  See  supra,  p.  i,  n.  i.— Ed. 


SEC.  id.]  FOSTER   V.    MACKINNON.  g 

The  pleas  traversed  the  several  indorsements,  and  alleged 
that  the  defendant's  indorsement  was  obtained  from  him  by- 
fraud. 

The  cause  was  tried  before  Bovill,  C.J.,  at  the  last  spring 
assizes  at  Guildford.  The  defendant,  who  was  a  gentleman 
far  advanced  in  years,  swore  that  the  indorsement  was  not  in 
his  handwriting,  and  that  he  had  never  accepted  nor  indorsed 
a  bill  of  exchange  ;  but  there  was  evidence  that  the  signature 
was  his  ;  and  Callow,  who  was  called  as  a  witness  for  the  plain- 
tiff, stated  that  he  saw  the  defendant  write  the  indorsement 
under  the  following  circumstances  :  Callow  had  been  secretary 
to  a  company  engaged  in  the  formation  of  a  railway  at  Sand- 
gate,  in  Kent,  in  which  the  defendant  (who  had  property  in  the 
neighborhood)  was  interested  ;  and  the  defendant  had  some 
time  previously,  at  Callow's  request,  signed  a  guarantee  for 
;i^3ooo,  in  order  to  enable  the  company  to  obtain  an  advance  of 
money  from  their  bankers.  Callow  took  the  bill  in  question 
(which  was  drawn  and  indorsed  by  Cooper)  to  the  defendant, 
and  asked  him  to  put  his  name  on  it,  telling  him  it  was  a  guar- 
antee ;  whereupon  the  defendant,  in  the  belief  that  he  was  sign- 
ing a  guarantee  similar  to  that  which  he  had  before  given  (and 
out  of  which  no  liability  had  resulted  to  him),  put  his  signature 
on  the  back  of  the  bill  immediately  after  that  of  Cooper.  Cal- 
low only  showed  the  defendant  the  back  of  the  paper  :  it  was, 
however,  in  the  ordinary  shape  of  a  bill  of  exchange,  and  bore 
a  stamp,  the  impress  of  which  was  visible  through  the  paper. 

The  Lord  Chief  Justice  told  the  jury  that,  if  the  indorsement 
was  not  the  signature  of  the  defendant,  or  if,  being  his  signa- 
ture, it  was  obtained  upon  a  fraudulent  representation  that  it 
was  a  guarantee,  and  the  defendant  signed  it  without  knowing 
that  it  was  a  bill,  and  under  the  belief  that  it  was  a  guarantee, 
and  if  the  defendant  was  not  guilty  of  any  negligence  in  so 
signing  the  paper,  he  was  entitled  to  the  verdict. 

The  jury  returned  a  verdict  for  the  defendant. 

Sir  J.  D.  Coleridge,  S.G.,  in  Easter  Term  last,  obtained  a 
rule  m'si  for  a  new  trial,  on  the  grounds  of  misdirection,  and 
that  the  verdict  was  against  evidence. 

Ballantine,  Serjt.,  Browfi,  Q.C.,  and  Are/u'lfu/d  showed  cause. 

Sir  J.  D.  Coleridge,  S.G.,  Sir  G.  Hotiyman,  Q.C.,  and  Tal- 
fourd  Salter  in  support  of  the  rule. 

July  5th.  The  judgment  of  the  Court  (Bovill,  C.J,,  Byles, 
Keating,  and  Montague  Smith,  JJ.)  was  delivered  by 

Byles,  J.  This  was  an  action  by  the  plaintiff,  as  indorsee  of 
a  bill  of  exchange  for  ;^3ooo,  against  the  defendant,  as  in- 
dorser.     The  defendant  by  one  of   his  pleas  traversed   the  in- 


lO 


FOSTER   V.    MACKINNON.  [CHAP.  I. 


dorsement,  and  by  another  alleged  that  the  defendant's  indorse- 
ment was  obtained  from  him  by  fraud.  The  plaintiff  was  a 
holder  for  value  before   maturity,  and   without   notice  of  any 

fraud. 

There  was  contradictory  evidence  as  to  whether  the  indorse- 
ment was  the  defendant's  signature  at  all  ;  but,  according  to 
the  evidence  of  one  Callow,  the  acceptor  of  the  bill,  who  was 
called  as  a  witness  for  the  plaintiff,  he,  Callow,  produced  the 
bill  to  the  defendant,  a  gentleman  advanced  in  life,  for  him  to 
put  his  signature  on  the  back,  after  that  of  one  Cooper,  who 
was  payee  of  the  bill  and  first  indorser,  Callow  not  saying- that 
it  was  a  bill,  and  telling  the  defendant  that  the  instrument  was 
a  guarantee.  The  defendant  did  not  see  the  face  of  the  bill  at 
all.  But  the  bill  was  of  the  usual  shape,  and  bore  a  stamp,  the 
impress  of  which  stamp  was  visible  at  the  back  of  the  bill. 
The  defendant  signed  his  name  after  Cooper's,  he  the  defendant 
(as  the  witness  stated)  believing  the  document  to  be  a  guar- 
antee only. 

The  Lord  Chief  Justice  told  the  jury  that,  if  the  indorsement 
was  not  the  defendant's  signature,  or  if,  being  his  signature,  it 
was  obtained  upon  a  fraudulent  representation  that  it  was  a 
guarantee,  and  the  defendant  signed  it  without  knowing  that 
it  was  a  bill,  and  under  the  belief  that  it  was  a  guarantee,  and 
if  the  defendant  was  not  guilty  of  any  negligence  in  so  signing 
the  paper,  the  defendant  was  entitled  to  the  verdict.  The  jury 
found  for  the  defendant. 

A  rule  nisi  was  obtained  for  a  new  trial,  first,  on  the  ground 
of  misdirection  in  the  latter  part  of  the  summing  up  ;  and,  sec- 
ondly, on  the  ground  that  the  verdict  was  against  the  evidence. 

As  to  the  first  branch  of  the  rule,  it  seems  to  us  that  the  ques- 
tion arises  on  the  traverse  of  the  indorsement.  The  case  pre- 
sented by  the  defendant  is,  that  he  never  made  the  contract 
declared  on  ;  that  he  never  saw  the  face  of  the  bill  ;  that  the 
purport  of  the  contract  was  fraudulently  misdescribed  to  him  ; 
that,  when  he  signed  one  thing,  he  was  told  and  believed  that 
he  was  signing  another  and  an  entirely  different  thing  ;  and 
that  his  mind  never  went  with  his  act. 

It  seems  plain,  on  principle  and  on  authority,  that,  if  a  blind 
man,  or  a  man  who  cannot  read,  or  who  for  some  reason  (not 
implying  negligence)  forbears  to  read,  has  a  written  contract 
falsely  read  over  to  him,  the  reader  misreading  to  such  a  degree 
that  the  written  contract  is  of  a  nature  altogether  different  from 
the  contract  pretended  to  be  read  from  the  paper  which  the 
blind  or  illiterate  man  afterward  signs  ;  then,  at  least  if  there 
be  no  negligence,   the   signature   so  obtained   is   of    no   force. 


SEC.  id.]  FOSTER   V.    MACKINNON.  I  i 

And  it  is  invalid  not  merely  on  the  ground  of  fraud,  where 
fraud  exists,  but  on  the  ground  that  the  mind  of  the  signer  did 
not  accompany  the  signature  ;  in  other  words,  that  he  never 
intended  to  sign,  and  therefore  in  contemplation  of  law  never 
did  sign,  the  contract  to  which  his  name  is  appended. 

The  authorities  appear  to  us  to  support  this  view  of  the  law. 
In  Thoroughgood's  Case'  it  was  held  that,  if  an  illiterate  man 
have  a  deed  falsely  read  over  to  him,  and  he  then  seals  and 
delivers  the  parchment,  that  parchment  is  nevertheless  not  his 
deed.  In  a  note  to  Thoroughgood's  Case,  in  Eraser's  edition 
of  Coke's  Reports,  it  is  suggested  that  the  doctrine  is  not  con- 
fined to  the  condition  of  an  illiterate  grantor  ;  and  a  case  in 
Keilwey's  Reports'  is  cited  in  support  of  this  observation.  On 
reference  to  that  case,  it  appears  that  one  of  the  judges  did 
there  observe  that  it  made  no  difference  whether  the  grantor 
were  lettered  or  unlettered.  That,  however,  was  a  case  where 
the  grantee  himself  was  the  defrauding  party.  But  the  posi- 
tion that,  if  a  grantor  or  covenantor  be  deceived  or  misled  as  to 
the  actual  contents  of  the  deed,  the  deed  does  not  bind  him,  is 
supported  by  many  authorities.  See  Com.  Dig.  Fait  (B.  2)  ; 
and  is  recognized  by  Bayley,  B.,  and  the  Court  of  Exchequer, 
in  the  case  of  Edwards  v.  Brown. ^  Accordingly,  it  has  recently 
been  decided  in  the  Exchequer  Chamber,  that,  if  a  deed  be  de- 
livered, and  a  blank  left  therein  be  afterward  improperly  filled 
up  (at  least  if  that  be  done  without  the  grantor's  negligence), 
it  is  not  the  deed  of  the  grantor.  Swan  v.  North  British  Austra- 
lasian Land  Company.'* 

These  cases  apply  to  deeds  ;  but  the  principle  is  equally  ap- 
plicable to  other  written  contracts.  Nevertheless,  this  prin- 
ciple, when  applied  to  negotiable  instruments,  must  be  and  is 
limited  in  its  application.  These  instruments  are  not  only 
assignable,  but  they  form  part  of  the  currency  of  the  country. 
A  qualification  of  the  general  rule  is  necessary  to  protect  inno- 
cent transferees  for  value.  If,  therefore,  a  man  write  his  name 
across  the  back  of  a  blank  bill-stamp,  and  part  with  it,  and  the 
paper  is  afterward  improperly  filled  up,  he  is  liable  as  indorser. 
If  he  write  it  across  the  face  of  the  bill,  he  is  liable  as  acceptor, 
when  the  instrument  has  once  passed  into  the  hands  of  an  inno- 
cent indorsee  for  value  before  maturity,  and  liable  to  the  extent 
of  any  sum  which  the  stamp  will  cover. 

In  these  cases,  however,  the  party  signing  knows  what  he  is 
doing  :  the  indorser  intended  to  indorse,  and  the  acceptor  in- 
tended to  accept,  a  bill  of  exchange  to  be  thereafter  filled  up, 

'  2  Co.  Rep.  9  b.  3  I  C.  &  J.  312. 

'  Keilw.  70,  pi.  6.  ^  2  H.  &  C.  175- 


12  FOSTER   V,    MACKINNON.  [cHAP.  I. 

leaving  the  amount,  the  date,  the  maturity,  and  the  other  par- 
ties to  the  bill  undetermined. 

But,  in  the  case  now  under  consideration,  the  defendant, 
according  to  the  evidence,  if  believed,  and  the  finding  of  the 
jury,  never  intended  to  indorse  a  bill  of  exchange  at  all,  but 
intended  to  sign  a  contract  of  an  entirely  different  nature.  It 
was  not  his  design,  and,  if  he  were  guilty  of  no  negligence,  it 
was  not  even  his  fault  that  the  instrument  he  signed  turned  out 
to  be  a  bill  of  exchange.  It  was  as  if  he  had  written  his  name 
on  a  sheet  of  paper  for  the  purpose  of  franking  a  letter,  or  in  a 
lady's  album,  or  on  an  order  for  admission  to  the  Temple 
Church,  or  on  the  fly-leaf  of  a  book,  and  there  had  already 
been,  without  his  knov/ledge,  a  bill  of  exchange  or  a  promissory 
note  payable  to  order  inscribed  on  the  other  side  of  the  paper. 
To  make  the  case  clearer,  suppose  the  bill  or  note  on  the  other 
side  of  the  paper  in  each  of  these  cases  to  be  written  at  a  time 
subsequent  to  the  signature,  then  the  fraudulent  misapplication 
of  that  genuine  signature  to  a  different  purpose  would  have 
been  a  counterfeit  alteration  of  a  writing  with  intent  to  defraud, 
and  would  therefore  have  amounted  to  a  forgery.  In  that  case, 
the  signer  would  not  have  been  bound  by  his  signature,  for  two 
reasons  :  first,  that  he  never  in  fact  signed  the  writing  declared 
on  ;  and,  secondly,  that  he  never  intended  to  sign  any  such 
contract. 

In  the  present  case,  the  first  reason  does  not  apply,  but  the 
second  reason  does  apply.  The  defendant  never  intended  to 
sign  that  contract,  or  any  such  contract.  He  never  intended 
to  put  his  name  to  any  instrument  that  then  was  or  thereafter 
might  become  negotiable.  He  was  deceived,  not  merely  as  to 
the  legal  effect,  but  as  to  the  actual  contents  of  the  instrument. 

We  are  not  aware  of  any  case  in  which  the  precise  question 
now  before  us  has  arisen  on  bills  of  exchange  or  promissory 
notes,  or  been  judicially  discussed.  In  the  case  of  Ingham  v. 
Primrose,'  and  the  case  of  Nance  v.  Lary,'  both  cited  by  the 
plaintiff,  the  facts  were  very  different  from  those  of  the  case 
before  us,  and  have  but  a  remote  bearing  on  the  question. 
But,  in  Putnam  v.  Sullivan,  an  American  case,  reported  in 
4  Mass.  45,  and  cited  in  Parsons  on  Bills  of  Exchange,  vol.  i., 
p.  Ill,  n.,  a  distinction  is  taken  by  Chief  Justice  Parsons  be- 
tween a  case  where  an  indorser  intended  to  indorse  such  a  note 
as  he  actually  indorsed,  being  induced  by  fraud  to  indorse  it, 
and  a  case  where  he  intended  to  endorse  a  different  note  and 
for  a  different  purpose.     And  the  Court  intimated  an  opinion 

'  7  C.  B.  (N.S.)  83  ;  28  L.  J.  (C.P.)  294. 

«  5  Alabama,  370,  cited  i  Parsons  on  Bills,  114,  n. 


SEC.  id.]  RUPLEY    V.    DAGGETT.  1 3 

that,  even  in  such  a  case  as  that,  a  distinction  might  prevail 
and  protect  the  indorsee. 

The  distinction  in  the  case  now  under  consideration  is  a  much 
plainer  one  ;  for,  on  this  branch  of  the  rule,  we  are  to  assume 
that  the  indorser  never  intended  to  indorse  at  all,  but  to  sign 
a  contract  of  an  entirely  different  nature. 

,     For  these  reasons,  we  think  the  direction  of  the  Lord  Chief 
Justice  was  right. 

With  respect,  however,  to  the  second  branch  of  the  rule,  we 
are  of  opinion  that  the  case  should  undergo  further  investiga- 
tion. We  abstain  from  giving  our  reasons  for  this  part  of  our 
decision  only  lest  they  should  prejudice  either  party  on  a  second 
inquiry. 

The  rule,  therefore,  will  be  made  absolute  for  a  new  trial. 

Rule  absolute. 

J^.   W.  Mount  for  plaintiff. 

Barlow,  Bowling  6^  Williams  for  defendant. 


ABRAM    RUPLEY   et  al.  v.  JOHN    F.  DAGGETT. 

In  the  Supreme  Court  of  Illinois,  September  Term,   1874. 

\Reported  171  74  Illinois  Reports  351.] 

Appeal  from  the  Circuit  Court  of  Will  County  ;  the  Hon. 
JosiAH  McRoberts,  Judge,  presiding. 

This  was  an  action  of  replevin,  brought  by  John  F.  Daggett 
against  Abram  Rupley  and  Jacob  Rupley,  to  recover  a  mare 
which  the  defendants  claimed  they  had  bought  of  the  plaintiff. 

It  appears  that  at  the  first  conversation  about  the  sale  of  the 
mare,  Rupley  asked  the  plaintiff  his  price,  the  plaintiff  swear- 
ing that  he  replied  $165,  while  the  defendant  testified  that  he 
said  $65,  and  that  he  did  not  understand  him  to  say  $165.  In 
the  second  conversation  Rupley  says  he  told  Daggett,  that  if 
the  mare  was  what  he  represented  her  to  be,  they  would  give 
$65,  and  Daggett  said  he  would  take  him  down  next  morning 
to  see  her.  Daggett  denied  this,  and  says  tliat  Rupley  said  to 
him,  "  Did  I  understand  you  sixty-five  ?"  Daggett  states  that 
he  supposed  Rupley  referred  to  the  fraction  of  the  $100,  and 
meant  sixty-five  as  coupled  with  the  price  named  at  the  previous 
interview.  He  answered,  "  Yes,  sixty-five."  Both  parties, 
from  this,  supposed  the  price  was  fixed,  Rupley  supposing  it 
was  $65,  and  Daggett  supposing  it  was  $165,  and  the  only  thing 
remaining  to  be  done,  as  each  thought,  was  for  Rupley  to  see 


14  RUPLEY    V.     DAGGETT.  [CHAP.  I. 

the  mare  and  decide  whether  she  suited  him.  The  next  day 
Rupley  came,  saw  the  mare  and  took  her  home  with  him.  The 
plaintiff  recovered  in  the  court  below,  and  the  defendants 
appealed. 

Fellows  &^  Leonard  for  the  appellants. 

Hill  &'  Dibell  for  the  appellee. 

Scott,  J.,  delivered  the  opinion  of  the  Court. 

It  is  very  clear,  from  the  evidence  in  this  case,  there  was  no 
sale  of  the  property  understandingly  made.  Appellee  supposed 
he  was  selling  for  $165,  and  it  may  be  appellant  was  equally 
honest  in  the  belief  that  he  was  buying  at  the  price  of  $65. 
There  is,  however,  some  evidence  tending  to  show  that  appel- 
lant Rupley  did  not  act  with  entire  good  faith.  He  was  told, 
before  he  removed  the  mare  from  appellee's  farm,  there  must 
be  some  mistake  as  to  the  price  he  was  to  pay  for  her.  There 
is  no  dispute  this  information  was  given  to  him.  He  insisted, 
however,  the  price  was  $65,  and  expressed  his  belief  he  would 
keep  her  if  there  was  a  mistake.  On  his  way  home  with  the 
mare  in  his  possession,  he  met  appellant,  but  never  intimated 
to  him  he  had  been  told  there  might  be  a  misunderstanding  as 
to  the  price  he  was  to  pay  for  her.  This  he  ought  to  have 
done,  so  that,  if  there  had  been  a  misunderstanding  between 
them,  it  could  be  corrected  at  once.  If  the  price  was  to  be 
$165,  he  had  never  agreed  to  pay  that  sum,  and  was  under  no 
sort  of  obligation  to  keep  the  property  at  that  price.  It  was 
his  privilege  to  return  it.  On  the  contrary,  appellee  had  never 
agreed  to  sell  for  $65,  and  could  not  be  compelled  to  part  with 
his  property  for  a  less  sum  than  he  chose  to  ask.  It  is  accord- 
ing to  natural  justice,  where  there  is  a  mutual  mistake  in  regard 
to  the  price  of  an  article  of  property,  there  is  no  sale,  and 
neither  party  is  bound.  There  has'  been  no  meeting  of  the 
minds  of  the  contracting  parties,  and  hence  there  can  be  no 
sale.  This  principle  is  so  elementary  it  needs  no  citation  of 
authorities  in  its  support.  Any  other  rule  would  work  injustice 
and  might  compel  a  person  to  part  with  his  property  without 
his  consent,  or  to  take  and  pay  for  property  at  a  price  he  had 
never  contracted  to  pay. 

There  was  no  error  in  refusing  instructions  asked  by  appel- 
lants. The  Court  was  asked  to  tell  the  jury  if  they  believed, 
from  the  evidence,  appellee  had  "  sworn  wilfully  and  corruptly 
false  in  any  material  portion  of  his  testimony,  then  they  are  at 
liberty  to  disregard  his  entire  testimony,  except  so  far  as  it  may 
be  corroborated  by  other  evidence  in  the  case."  Conceding 
this  instruction  states  a  cotf^ct  abstract  principle  of  law,  there 
was  no  necessity  for  giving  it  under  the  facts  proven  in  this 


SEC.  1^.]  CUNDV    AND    BEVIXGTON    2'.    LINDSAY.  15 

case.  The  verdict  was  right,  and  appellants  were  not  prej- 
udiced by  the  refusal  of  the  Court  to  give  it. 

All  that  was  pertinent  to  the  issues  in  the  other  refused  in- 
structions was  contained  in  others  that  were  given,  and  there 
was  no  necessity  for  repeating  it. 

No  material  error  appearing  in  the  record,  the  judgment 
must  be  affirmed. 

Judgment  affirmed. 


JAMES     CUNDY    and    T.     BEVINGTON,    Appellants    v. 
THOMAS    LINDSAY  and  Others,   Respondents. 

In  the  House  of  Lords,  March   1-4,  1878. 

\Reported  iti  Law  Reports,  3  Appeal  Cases  459.] 

Appeal  from  a  decision  of  the  Court  of  Appeal,  which  had 
reversed  a  previous  decision  of  the  Queen's  Bench. 

In  1873  one  Alfred  Blenkarn  hired  a  room  at  a  corner  house 
in  Wood  Street,  Cheapside — it  had  two  side  windows  opening 
into  Wood  Street,  but  though  the  entrance  was  from  Little 
Love  Lane,  it  was  by  him  constantly  described  as  37,  Wood 
Street,  Cheapside.  His  agreement  for  this  room  was  signed 
"  Alfred  Blenkarn."  The  now  respondents,  Messrs.  Lindsay  & 
Co.,  werg  linen  manufacturers,  carrying  on  business  at  Belfast. 
In  the  latter  part  of  1873,  Blenkarn  wrote  to  the  plaintiffs  on  the 
subject  of  a  purchase  from  them  of  goods  of  their  manufacture — 
chiefly  cambric  handkerchiefs.  His  letters  were  written  as  from 
"  37>  Wood  Street,  Cheapside,"  where  he  pretended  to  have  a 
warehouse,  but  in  fact  occupied  only  a  room  on  the  top  floor, 
and  that  room,  though  looking  into  Wood  Street  on  one  side, 
could  only  be  reached  from  the  entrance  in  5,  Little  Love  Lane. 
The  name  signed  to  these  letters  was  always  signed  without  any 
initial  as  representing  a  Christian  name,  and  was,  besides,  so 
written  as  to  appear  "  Blenkiron  &  Co."  There  was  a  highly 
respectable  firm  of  W.  Blenkiron  &  Son.  carrying  on  business 
in  Wood  Street — but  at  number  123,  Wood  Street,  and  not  at 
37.  Messrs.  Lindsay,  who  knew  the  respectability  of  Blenk- 
iron &  Son,  though  not  the  number  of  the  house  where  they 
carried  on  business,  answered  the  letters,  and  sent  the  goods 
addressed  to  "  Messrs.  Blenkiron  &  Co.,  37,  Wood  Street, 
Cheapside,"  where  they  were  taken  in  at  once.  The  invoices 
sent  with  the  goods  were  always  addressed  in  the  same  way. 
Blenkarn  sold  the  goods,  thus  fraudulently  obtained  from 
Messrs.   Lindsay,  to  different  persons,  and  among  the  rest  he 


l6  CUNDY   AND   BEVINGTON   V.    LINDSAY.         [CHAP.  1. 

sold  250  dozen  of  cambric  handkerchiefs  to  the  Messrs.  Cundy, 
who  were  bond  fide  purchasers,  and  who  resold  them  in  the 
ordinary  way  of  their  trade.  Payment  not  being  made,  an 
action  was  commenced  in  the  Mayor's  Court  of  London  by 
Messrs.  Lindsay,  the  junior  partner  of  which  firm,  Mr.  Thomp- 
son, made  the  ordinary  affidavit  of  debt,  as  against  Alfred 
Bienkarn,  and  therein  named  Alfred  Blenkarn  as  the  debtor. 
Blenkarn's  fraud  was  soon  discovered,  and  he  was  prosecuted 
at  the  Central  Criminal  Court,  and  convicted  and  sentenced. 
Messrs.  Lindsay  then  brought  an  action  against  Messrs.  Cundy 
as  for  unlawful  conversion  of  the  handkerchiefs.  The  cause 
was  tried  before  Mr.  Justice  Blackburn,  who  left  it  to  the  jury 
to  consider  whether  Alfred  Blenkarn,  with  a  fraudulent  intent 
to  induce  the  plaintiffs  to  give  him  the  credit  belonging  to  the 
good  character,  of  Blenkiron  &  Co.,  wrote  the  letters,  and  by 
fraud  induced  the  plaintiffs  to  send  the  goods  to  37,  Wood 
Street — were  they  the  same  goods  as  those  bought  by  the  de- 
fendants— and  did  the  plaintiffs  by  the  affidavit  of  debt  intend, 
as  a  matter  of  fact,  to  adopt  Alfred  Blenkarn  as  their  debtor. 
The  first  and  second  questions  were  answered  in  the  affirma- 
tive, and  the  third  in  the  negative.  A  verdict  was  taken  for  the 
defendants,  with  leave  reserved  to  move  to  enter  the  verdict  for 
the  plaintiffs.  On  motion  accordingly,  the  Court,  after  argu- 
ment, ordered  the  rule  for  entering  judgment  for  the  plaintiffs 
to  be  discharged,  and  directed  judgment  to  be  entered  for  the 
defendants.'  On  appeal,  this  decision  was  reversed  and  judg- 
ment ordered  to  be  entered  for  the  plaintiffs,  Messrs.  Lindsay.' 

This  appeal  was  then  brought. 

The  Solicitor-General  {Sir  H.  S.  Gi^ard)  and  Benjamin,  Q.C. 
{B.  Francis  Williams  was  with  them)  for  the  appellants. 

Wills,  Q.C,  and  Fullarton  for  the  respondents. 

The  Lord  Chancellor  (Lord  Cairns).  My  Lords,  you  have 
in  this  case  to  discharge  a  duty  which  is  always  a  disagreeable 
one  for  any  Court — namely,  to  determine  as  between  two  par- 
ties, both  of  whom  are  perfectly  innocent,  upon  which  of  the 
two  the  consequences  of  a  fraud  practised  upon  both  of  them 
must  fall.  My  Lords,  in  discharging  that  duty  your  Lordships 
can  do  no  more  than  apply,  rigorously,  the  settled  and  well- 
known  rules  of  law.^ 

My  Lords,  the  question,  therefore,  in  the  present  case,  as  your 
Lordships  will  observe,  really  becomes  the  very  short  and  sim- 
ple one  which  I  am  about  to  state.     Was  there  any  contract 

'  I  Q.  B.  D.  348.  '  2  Q.  B.  D.  96. 

*  A  portion  of  the  opinion  not  relating  to  the  question  of  contract  has  been 
omitted. — Ed. 


SEC.  I^.]  CUNDY   AND   BEVINGTOX   Z'.    LINDSAY.  ly 

which,  with  regard  to  the  goods  in  question  in  this  case,  had 
passed  the  property  in  the  goods  from  the  Messrs.  Lindsay  to 
Alfred  Blenkarn  ?  If  there  was  any  contract  passing  that  prop- 
erty, even  although,  as  I  have  said,  that  contract  might  after- 
ward be  open  to  a  process  of  reduction,  upon  the  ground  of 
fraud,  still,  in  the  mean  time,  Blenkarn  might  have  conveyed  a 
good  title  for  valuable  consideration  to  the  present  appellants. 

Now,  my  Lords,  there  are  two  observations  bearing  upon  the 
solution  of  that  question  which  I  desire  to  make.  In  the  first 
place,  if  the  property  in  the  goods  in  question  passed,  it  could 
only  pass  by  way  of  contract  ;  there  is  nothing  else  which  could 
have  passed  the  property.  The  second  observation  is  this,  your 
Lordships  are  not  here  embarrassed  by  any  conflict  of  evidence, 
or  any  evidence  whatever  as  to  conversations  or  as  to  acts  done, 
the  whole  history  of  the  whole  transaction  lies  upon  paper. 
The  principal  parties  concerned,  the  respondents  and  Blenkarn, 
never  came  in  contact  personally — everything  that  was  done 
was  done  by  writing.  What  has  to  be  judged  of,  and  what  the 
jury  in  the  present  case  had  to  judge  of,  was  merely  the  con- 
clusion to  be  derived  from  that  writing,  as  applied  to  the 
admitted  facts  of  the  case. 

Now,  my  Lords,  discharging  that  duty  and  answering  that 
inquiry,  what  the  jurors  have  found  is  in  substance  this  :  it  is 
not  necessary  to  spell  out  the  words,  because  the  substance  of  it 
is  beyond  all  doubt.  They  have  found  that  by  the  form  of  the 
signatures  to  the  letters  which  were  written  by  Blenkarn,  by  the 
mode  in  which  his  letters  and  his  applications  to  the  respond- 
ents were  made  out,  and  by  the  way  in  which  he  left  uncor- 
rected the  mode  and  form  in  which,  in  turn,  he  was  addressed 
by  the  respondents  ;  that  by  all  those  means  he  led,  and  in- 
tended to  lead,  the  respondents  to  believe,  and  they  did  believe, 
that  the  person  with  whom  they  were  communicating  was  not 
Blenkarn,  the  dishonest  and  irresponsible  man,  but  was  a  well- 
known  and  solvent  house  of  Blenkiron  &  Co.,  doing  business  in 
the  same  street.  My  Lords,  those  things  are  found  as  matters 
of  fact,  and  they  are  placed  beyond  the  range  of  dispute  and 
controversy  in  the  case. 

If  that  is  so,  what  is  the  consequence  ?  It  is  that  Blenkarn — 
the  dishonest  man,  as  I  call  him — was  acting  here  just  in  the 
same  way  as  if  he  had  forged  the  signature  of  Blenkiron  &  Co., 
the  respectable  firm,  to  the  applications  for  goods,  and  as  if, 
when,  in  return,  the  goods  were  forwarded  and  letters  were 
sent,  accompanying  them,  he  had  intercepted  the  goods  and 
intercepted  the  letters,  and  had  taken  possession  of  the  goods, 
and  of  the  letters  which  were  addressed  to,  and  intended  for, 


l8  CUNDY   AND    BEVINGTON   V.    LINDSAY.  [CHAP.  I. 

not  himself,  but  the  firm  of  Blenkiron  &  Co.  Now,  my  Lords, 
stating  the  matter  shortly  in  that  way,  I  ask  the  question,  how 
is  it  possible  to  imagine  that  in  that  state  of  things  any  contract 
could  have  arisen  between  the  respondents  and  Blenkarn,  the 
dishonest  man  ?  Of  him  they  knew  nothing,  and  of  him  they 
never  thought.  With  him  they  never  intended  to  deal.  Their 
minds  never,  even  for  an  instant  of  time,  rested  upon  him,  and 
as  between  him  and  them  there  was  no  consensus  of  mind  which 
could  lead  to  any  agreement  or  any  contract  whatever.  As 
between  him  and  them  there  was  merely  the  one  side  to  a  con- 
tract, where,  in  order  to  produce  a  contract,  two  sides  would 
be  required.  With  the  firm  of  Blenkiron  &  Co.  of  course  there 
was  no  contract,  for  as  to  them  the  matter  was  entirely  un- 
known, and  therefore  the  pretence  of  a  contract  was  a  failure. 

The  result,  therefore,  my  Lords,  is  this,  that  your  Lordships 
have  not  here  to  deal  with  one  of  those  cases  in  which  there  is 
de  facto  a  contract  made  which  may  afterward  be  impeached  and 
set  aside,  on  the  ground  of  fraud  ;  but  you  have  to  deal  with  a 
case  which  ranges  itself  under  a  completely  different  chapter 
of  law,  the  case,  namely,  in  which  the  contract  never  comes 
into  existence.  My  Lords,  that  being  so,  it  is  idle  to  talk  of 
the  property  passing.  The  property  remained,  as  it  originally 
had  been,  the  property  of  the  respondents,  and  the  title  which 
was  attempted  to  be  given  to  the  appellants  was  a  title  which 
could  not  be  given  to  them. 

My  Lords,  I  therefore  move  your  Lordships  that  this  appeal 
be  dismissed  with  costs,  and  the  judgment  of  the  Court  of 
Appeal  affirmed. 

Lord  Hatherley.  My  Lords,  I  have  come  to  the  same  con- 
clusion as  that  which  has  just  been  expressed  by  my  noble  and 
learned  friend  on  the  woolsack.  The  real  question  we  have  to 
consider  here  is  this  :  whether  or  not  any  contract  was  actually 
entered  into  between  the  respondents  and  a  person  named 
Alfred  Blenkarn,  who  imposed  upon  them  in  the  manner  de- 
scribed in  the  verdict  of  the  jury  ;  the  case  that  was  tried  being 
one  as  between  the  alleged  vendors  and  a  person  who  had  pur- 
chased from  Alfred  Blenkarn. 

Now  the  case  is  simply  this,  as  put  by  the  learned  Judge  in 
the  Court  below  ;  it  was  most  carefully  stated,  as  one  might 
expect  it  would  be  by  that  learned  Judge  :  "  Is  it  made  out  to 
your  satisfaction  that  Alfred  Blenkarn,  with  a  fraudulent  intent 
to  induce  customers  generally,  and  Mr.  Thompson  in  particular, 
to  give  him  the  credit  of  the  good  character  which  belonged  to 
William  Blenkiron  &  Sons,  wrote  those  letters  in  the  way  you 
have  heard,  and  had  those  invoices  headed  as  you  have  heard," 


SEC.  I^.]  CUNDY   AND    BEVINGTON   V.    LINDSAY.  I9 

and  farther  than  that,  "  did  he  actually  by  that  fraud  induce 
Mr.  Thompson  to  send  the  goods"  "  to  37,  Wood  Street  ?" 

Both  these  questions  were  answered  in  the  affirmative  by  the 
jury.  What,  then,  vvas  the  result  ?  It  was,  that  there  were 
letters  written  by  a  man  endeavoring  by  contrivance  and 
fraud,  as  appears  upon  the  face  of  the  letters  themselves,  to 
obtain  the  credit  of  the  well-known  firm  of  Blenkiron  &  Co., 
Wood  Street.  That  was  done  by  a  falsification  of  the  signature 
of  the  Blenkirons,  writing  his  own  name  in  such  a  manner  as 
that  it  appeared  to  represent  the  signature  of  that  firm.  And 
farther,  his  letters  and  invoices  were  headed  "  Wood  Street," 
which  was  not  an  accurate  way  of  heading  them  ;  for  he  occu- 
pied only  a  room  on  a  third  floor,  looking  into  Little  Love  Lane 
on  one  side,  and  looking  into  Wood  Street  on  the  other.  He 
headed  them  in  that  way,  in  order  that  by  these  two  devices  he 
might  represent  himself  to  the  respondents  as  Blenkiron  of 
Wood  Street.  He  did  that  purposely  ;  and  it  is  found  that  he 
induced  the  respondents  by  that  device  to  send  the  goods  to 
Blenkiron  of  Wood  Street.  I  apprehend,  therefore,  that  if 
there  could  be  said  to  have  been  any  sale  at  all,  it  failed  for 
want  of  a  purchaser.  The  sale,  if  made  out  upon  such  a  trans- 
action as  this,  would  have  been  a  sale  to  the  Blenkirons  of 
Wood  Street,  if  they  had  chosen  to  adopt  it,  and  to  no  other 
person  whatever — not  to  this  Alfred  Blenkarn,  with  whom  the 
respondents  had  not,  and  with  whom  they  did  not  wish  to  have, 
any  dealings  whatever. 

My  Lords,  it  appears  to  me  that  that  brings  the  case  com- 
pletely within  the  authority  of  Hardman  v.  Booth,'  where  it 
was  held  that  there  was  no  real  contract  between  the  parties  by 
whom  the  goods  were  delivered  and  the  concoctor  of  the  fraud 
who  obtained  possession  of  them,  because  they  were  not  to  him 
sold.  Exactly  in  the  same  way  here,  there  was  no  real  contract 
whatever  with  Alfred  Blenkarn  ;  no  goods  had  been  delivered 
to  anybody  except  for  the  purpose  of  transferring  the  property 
to  Blenkiron  (not  Blenkarn)  ;  therefore  the  case  really  in  sub- 
stance is  the  identical  case  of  Hardman  v    Booth*  over  again. 

My  noble  and  learned  friend  who  sits  opposite  to  me  (Lord 
Penzance)  has  called  my  attention  to  a  case  which  seems  to 
have  been  decided  on  exactly  the  same  principle  as  Hardman  v. 
Booth,'  and  it  is  worth  while  referring  to  it  as  an  additional 
authority  upon  that  principle  of  law.  It  is  the  case  of  Hig- 
gons  V.  Burton.''  There  one  Dix,  who  had  been  the  agent  of  a 
responsible  firm  that  had  had  dealings  with  the  plaintiff  in  the 
action,  was  dismissed  by  his  employers  ;  he  concealed  that  dis- 

'  I  H.  &  C.  803.  2  Ibid.  '  Ibid.  *  26  L.  J.  (Ex  )  342. 


20  CUNDY   AND    BEVINGTON   V.    LINDSAY.  [CHAP.  I. 

missal  from  a  customer  of  the  firm,  the  plaintiff  in  the  action, 
and,  having  concealed  that  dismissal,  continued  to  obtain  goods 
from  him  still  as  acting  for  the  firm.  The  goods  were  delivered 
to  him,  but  it  was  held  that  that  delivery  was  not  a  delivery  to 
any  person  whatever  who  had  purchased  the  goods.  The 
goods,  if  they  had  been  purchased  at  all,  would  have  been  pur- 
chased by  the  firm  for  which  this  man  had  acted  as  agent  ;  but 
he  had  been  dismissed  from  the  agency — there  was  no  contract, 
therefore,  with  the  firm  ;  there  was  no  contract  ever  intended 
between  the  vendors  of  the  goods  and  the  person  who  had  pro- 
fessed to  purchase  the  goods  as  the  agent  of  that  firm  ;  and  the 
consequence  was  that  there  was  no  contract  at  all.  There,  as 
here,  the  circumstance  occurred  that  an  innocent  person  pur- 
chasing the  goods  from  the  person  with  whom  there  was  no 
contract  was  obliged  to  submit  to  his  loss.  The  point  of  the 
case  is  put  so  very  shortly  by  Chief  Baron  Pollock,  that  I  can- 
not do  better  than  adopt  his  reasoning  :  "  There  was  no  sale  at 
all,  but  a  mere  obtaining  of  goods  by  false  pretences  ;  the  prop- 
erty, therefore,  did  not  pass  out  of  the  plaintiffs."  The  other 
Judges,  who  were  Barons  Martin,  Branwell,  and  Watson,  con- 
curred in  that  judgment. 

Here,  I  say,  exactly  as  in  those  cases  of  Hardman  v.  Booth' 
and  Higgons  v.  Burton,^  there  was  no  sale  at  all  ;  there  was  a 
representation,  a  false  representation,  made  by  Blenkarn,  by 
which  he  got  goods  sent  to  him,  upon  applications  from  him  to 
become  a  purchaser,  but  upon  invoices  made  out  to  the  firm  of 
Blenkiron  &  Co.  But  no  contract  was  made  with  Blenkarn, 
nor  any  contract  was  made  with  Blenkiron  &  Co.,  because  they 
knew  nothing  at  all  about  it,  and  therefore  there  could  be  no 
defivery  of  the  goods  with  the  intent  to  pass  the  property. 

We  have  been  pressed  very  much  with  an  ingenious  mode  of 
putting  the  case  on  the  part  of  the  counsel  who  have  argued 
with  eminent  ability  for  the  appellants  in  this  case — namely, 
suppose  this  fraudulent  person  had  gone  himself  to  the  firm 
from  whom  he  wished  to  obtain  the  goods,  and  had  represented 
that  he  was  a  member  of  one  of  the  largest  firms  in  London. 
Suppose  on  his  making  that  representation  the  goods  had  been 
delivered  to  him.  Now  I  am  very  far,  at  all  events  on  the 
present  occasion,  from  seeing  my  way  to  this,  that  the  goods 
being  sold  to  him  as  representing  that  firm  he  could  be  treated 
in  any  other  way  than  as  an  agent  of  that  firm,  or  suppose  he 
had  said  :  "  I  am  as  rich  as  that  firm.  I  have  transactions  as 
large  as  those  of  that  firm.  I  have  a  large  balance  at  my 
bankers  ;"  then  the  sale  would  have  been  a  sale  to  a  fraudulent 
'  I  H.  &  C.  S03.  2  26  L.  J.  ^Ex)  342. 


SEC.  I^.]  CUNDY   AND    BEVINGTON   V.    LINDSAY.  21 

purchaser  on  fraudulent  representations,  and  a  sale  which 
would  have  been  capable  of  being  set  aside,  but  still  a  sale 
would  have  been  made  to  the  person  who  made  those  false  rep- 
resentations ;  and  the  parting  with  the  goods  in  that  case  might 
possibly — I  say  no  more — have  passed  the  property. 

But  this  case  is  an  entirely  different  one.  The  whole  case,  as 
represented  here  is  this  ;  from  beginning  to  end  the  respond- 
ents believed  they  were  dealing  with  Blenkiron  &  Co.,  they 
made  out  their  invoices  to  Blenkiron  &  Co.,  they  supposed  they 
sold  to  Blenkiron  &  Co.,  they  never  sold  in  any  way  to  Alfred 
Blenkarn  ;  and  therefore  Alfred  Blenkarn  cannot,  by  so  obtain- 
ing the  goods,  have  by  possibility  made  a  good  title  to  a  pur- 
chaser, as  against  the  owners  of  the  goods,  who  had  never  in 
any  shape  or  way  parted  with  the  property  nor  with  anything 
more  than  the  possession  of  it. 

Lord  Penzance.  My  Lords,  the  findings  of  the  jury  in  this 
case,  coupled  with  the  evidence,  warrant  your  Lordships  in 
concluding  that  the  following  are  the  circumstances  under 
which  the  respondents  parted  with  their  goods.  Whether  by 
so  doing  they  passed  the  property  in  them  to  Alfred  Blenkarn 
is,  I  conceive,  the  real  question  to  be  determined. 

The  respondents  had  never  seen  or  even  heard  of  Alfred 
Blenkarn,  when  they  received  a  letter  followed  by  several 
others  signed  in  a  manner  which  was  not  absolutely  clear,  but 
which  the  writer  intended  them  to  take,  and  which  they  did 
take,  to  be  the  signature  of  a  well-known  house  of  Blenkiron  & 
Co.,  which  in  fact  carried  on  business  at  No.  123,  Wood  Street. 
The  purport  of  these  letters  was  to  order  the  goods  now  in  ques- 
tion. The  house  of  Blenkiron  &  Co.  was  known  to  the  respond- 
ents, and  it  was  also  known  that  they  lived  in  Wood  Street, 
though  the  respondents  did  not  know  the  number.  The  re- 
spondents answered  these  letters,  addressing  their  answers  to 
Blenkiron  &  Co.  in  Wood  Street,  but  in  place  of  No.  123,  they 
directed  them  to  No.  37,  which  was  the  number  given  in  the 
letters  as  the  address  of  that  firm.  In  the  result  they  sent  off 
the  goods  now  in  dispute,  and  addressed  them,  as  they  had 
addressed  their  letters,  to  Blenkiron  &  Co.,  No.  37,  Wood 
Street,  London.  It  is  not  doubted  or  disputed  that  throughout 
this  correspondence  and  up  to,  and  after,  the  time  that  the  re- 
spondents had  dispatched  their  goods  to  London,  they  intended 
to  deal  and  believed  they  were  dealing  with  Blenkiron  &  Co., 
and  with  nobody  else  ;  nor  is  it  capable  of  dispute  that,  when 
they  parted  with  the  possession  of  their  goods,  they  did  so  with 
the  intention  that  the  goods  should  pass  into  the  hands  of  Blenk- 
iron &  Co.,  to  whom  they  addressed  these  goods.     The  goods, 


22  CUNDY   AND   BEVINGTON   V.    LINDSAY,  [CHAP.  I. 

however,  were  not  delivered  to  Blenkiron  &  Co.,  to  whom  they 
were  addressed,  but  found  their  way  to  the  hands  of  Alfred 
Blenkarn,  owing  to  the  number  in  Wood  Street  being  given  as 
No.  37,  in  place  of  No.  123— a  mistake  which  had  been  pur- 
posely brought  about  by  the  writer  of  the  letters  as  I  have 
before  mentioned,  who  was  no  other  than  Alfred  Blenkarn,  and 
who  had  an  office  or  room  at  No.  37,  Wood  Street. 

In  this  state  of  things,  it  is  not  denied  that  the  contract,  or 
dealing,  which  the  respondents  thought  they  were  entering  into 
with  Blenkiron  &  Co.,  and  in  fulfilment  of  which  they  parted 
with  their  goods,  and  forwarded  them  to  what  they  thought 
was  the  address  of  that  firm,  was  no  contract  at  all  with  them, 
seeing  that  Blenkiron  &  Co.  knew  nothing  of  the  transaction. 
But,  say  the  appellants,  it  was  a  contract  with,  and  a  good  de- 
livery to,  Alfred  Blenkarn  so  as  to  pass  the  property  in  the 
goods  to  that  individual,  although  the  goods  were  not  addressed 
to  him  and  the  respondents  did  not  know  of  his  existence. 

I  am  not  aware,  my  Lords,  that  there  is  any  decided  case  in 
which  a  sale  and  delivery  intended  to  be  made  to  one  man,  has 
been  held  to  be  a  sale  and  delivery  so  as  to  pass  the  property 
to  another,  against  the  intent  and  will  of  the  vendor.  And  if 
this  cannot  be,  it  is  difficult  to  s«e  how  the  contention  of  the 
appellants  can  be  maintained.  It  was  indeed  argued  that  as 
the  letters  and  goods  were  addressed  to  No.  37  instead  of  No. 
123,  this  constituted  a  dealing  with  the  person  whose  office  was 
at  No.  37.  But  to  justify  this  argument  it  ought  at  least  to  be 
shown  that  the  respondents  knew  that  there  was  such  a  person, 
and  that  he  had  offices  there — whereas  the  contrary  is  the  fact, 
and  the  respondents  only  adopted  the  number  because  it  was 
given  as  the  address  in  letters  purporting  to  be  signed  "  Blenk- 
iron &  Co." 

My  Lords,  I  am  unable  to  distinguish  this  case  in  principle 
from  that  of  Hardman  v.  Booth,'  to  which  reference  has  been 
made.  In  that  case  Edward  Gandell,  who  obtained  possession 
of  the  plaintiff's  goods,  pretended  to  have  authority  to  order 
goods  for  Thomas  Gandell  &  Co.,  which  he  had  not,  and  then 
intercepted  the  goods  and  made  away  with  them  ;  the  Court 
held  that  there  was  no  contract  with  Thomas  Gandell  &  Co.,  as 
they  had  given  no  authority,  and  none  with  Edward  Gandell, 
who  had  ordered  the  goods,  as  the  plaintiffs  never  intended  to 
deal  with  him. 

In  the  present  case  Alfred  Blenkarn  pretended  that  he  was, 
and  acted  as  if  he  was,  Blenkiron  &  Co.,  with  whom  alone  the 
vendors  meant  to  deal.     No  contract  was  ever  intended  with 

'  I  H.  &  C.  803. 


SEC.  I^.]  STODDARD   V.    HAM.  23 

him,  and  the  contract  which  was  intended  failed  for  want  of 
another  party  to  it.  In  principle  the  two  eases  seem  to  me  to 
be  quite  alike. 

Another  case  of  a  similar  kind  is  that  of  Higgons  v.  Burton,' 
to  which  similar  reasoning  was  applied. 

Hypothetical  cases  were  put  to  your  Lordships  in  argument 
in  which  a  vendor  was  supposed  to  deal  personally  with  a 
swindler,  believing  him  to  be  some  one  else  of  credit  and  stabil- 
ity, and  under  this  belief  to  have  actually  delivered  goods  into 
his  hands.  My  Lords,  I  do  not  think  it  necessary  to  express 
an  opinion  upon  the  possible  effect  of  some  cases  which  I  can 
imagine  to  happen  of  this  character,  because  none  of  such  cases 
can,  I  think,  be  parallel  with  that  which  your  Lordships  have 
now  to  decide.  For  in  the  present  case  the  respondents  were 
never  brought  personally  into  contact  with  Alfred  Blenkarn  ; 
all  their  letters,  although  received  and  answered  by  him,  were 
addressed  to  Blenkiron  &  Co.,  and  intended  for  that  firm  only  ; 
and  finally  the  goods  in  dispute  were  not  delivered  to  him  at 
all,  but  were  sent  to  Blenkiron  &  Co.,  though  at  a  wrong 
address. 

This  appeal  ought  therefore,  in  my  opinion,  to  be  dismissed. 

Lord  Gordon  concurred. 

Judgment  appealed  from  affirmed  ;  and  appeal  dismissed  with 
■costs. 
■  Lords'  Journals,  March  4th,  1878. 

Charles  O.  Humphreys  6^  Son  for  the  appellants. 

Ashurst,  Morris,  Crisp  &>  Co.  for  the  respondents. 


SAMUEL  A.  STODDARD  and  Another  v.  JOSEPH  HAM. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  Septem- 
ber 10,  1880. 

[Reported  in  129  Massachusetts  Reports  383.] 

Tort  for  the  conversion  of  a  quantity  of  bricks.  Answer,  a 
general  denial.  Trial  in  the  Superior  Court,  without  a  jury, 
before  Pitman,  J.,  who  reported  the  case  for  the  determination 
of  this  Court  upon  the  following  facts  found  by  him  : 

The  plaintiffs  were  manufacturers  of  and  dealers  in  bricks,  at 
Bangor,  Me.  The  bricks  in  question  were  there  purchased  of 
the  plaintiffs  by  Charles  E.  Leonard,  who  did  a  commission 
business  in  that  city,  but  sometimes  bought  on  his  own  account. 

•  26  L.  J.  (Ex.)  342. 


24  STODDARD   V.    HAM.  [CHAP.  I. 

The  plaintiffs  supposed  they  were  selling  these  bricks  to  the  de- 
fendant through  Leonard  as  his  agent  ;  and  they  were  sold  on 
the  credit  of  the  defendant  solely,  and  would  not  have  been  sold 
on  the  personal  credit  of  Leonard  ;  but  Leonard  was  not  the 
agent  of  the  defendant  in  this  purchase,  and  had  no  authority 
to  bind  him.  Leonard  was  not  guilty  of  any  false  representa- 
tions as  to  agency  ;  and  it  was  a  case  of  error  and  mistake  on 
the  part  of  the  plaintiffs  as  to  the  principal  with  whom  they 
were  dealing. 

The  bricks  were  bought  upon  short  credit,  and  were  immedi- 
ately sold  by  Leonard  to  the  defendant,  at  a  fixed  price  deliv- 
ered in  Boston,  and  were,  in  fact,  bought  with  a  view  to  such 
sale.  The  bricks  remained  in  the  plaintiffs'  yard  and  posses- 
sion until  after  the  sale  by  Leonard  to  the  defendant,  and  were 
afterward  delivered  by  the  plaintiffs  at  a  wharf  in  Bangor,  as 
directed  by  Leonard,  and  by  him  shipped  to  the  defendant, 
Leonard  taking  the  bills  of  lading  in  his  own  name.  Leonard 
sold  other  bricks  to  the  defendant,  at  or  about  the  same  time, 
and  drew  drafts  against  the  aggregate  cargoes,  which  were 
accepted  and  paid  by  the  defendant,  who  also  paid  the  freight 
on  account  of  Leonard.  From  the  proceeds,  certain  payments 
were  made  by  Leonard  to  the  plaintiffs,  who  supposed  that  they 
were  made  on  the  defendant's  account,  and  they  were  credited 
to  the  latter.  After  the  bricks  were  all  delivered,  Leonard 
failed  in  business,  and  no  other  payments  were  made.  Leonard 
was  largely  indebted  to  the  defendant,  and  he  offset  the  claim 
of  Leonard  for  the  balance  due  him  on  the  bricks  by  this  ante- 
cedent indebtedness.  After  Leonard  stopped  payment,  the 
plaintiffs  made  due  demand  on  the  defendant  for  the  bricks, 
contending  that  they  had  never  parted  with  the  property  in 
them,  if  the  defendant  repudiated  the  agency  of  Leonard  ;  and 
offered  to  repay  the  defendant  for  all  advances  and  expenses 
incurred  by  him  ;  but  the  defendant  refused  to  deliver  them, 
and  claimed  to  hold  by  purchase  from  Leonard.  At  the  time 
of  the  demand,  the  defendant  had  on  hand  some  of  the  bricks 
which  came  from  the  plaintiffs'  yard  ;  the  others  had  been  sold 
and  delivered  by  the  defendant  as  they  arrived. 

Upon  these  facts,  the  judge  ruled,  as  matter  of  law,  that  the 
plaintiffs  could  not  recover  ;  and  ordered  judgment  for  the  de- 
fendant. If  the  ruling  was  right,  judgment  was  to  be  entered 
for  the  defendant  ;  otherwise,  the  case  to  stand  for  a  new  trial. 

S.  H.  Tyng  for  the  plaintiffs. 

N.  Morse  for  the  defendant. 

Colt,  J.  This  case  was  tried  without  a  jury,  and  there  is  no 
reason  to  doubt  that,  upon  the  facts  found  by  the  judge,  it  was 


SEC.  I^.]  STODDARD    V.    PIAM.  2$ 

correctly  ruled  that  the  plaintiffs  could  not  recover  in  tort  for 
the  conversion  of  the  property  in  dispute. 

It  is  not  enough  to  give  the  plaintiffs  a  right  to  recover,  that 
they  supposed  they  were  selling  bricks  to  the  defendant,  through 
Leonard  his  agent,  and  that  they  would  not  have  sold  them  to 
Leonard  on  his  sole  credit.  The  judge  found  that  they  were  in 
fact  sold  to  Leonard.  There  was  no  fraud,  no  false  representa- 
tion of  agency,  or  pretence  on  the  part  of  Leonard  that  he  was 
buying  for  any  one  else.  He  was  a  commission  merchant,  who 
was  in  the  habit  of  purchasing  goods  on  his  own  account,  and 
who  honestly  bought  the  bricks  for  himself,  and  sold  them  to 
the  defendant  as  his  own.  It  was  not  a  case  of  mistaken  iden- 
tity. The  plaintiffs  knew  that  they  were  dealing  with  Leonard  ; 
they  did  not  mistake  him  for  the  defendant  ;  nothing  was  said 
as  to  any  other  party  to  the  sale.  The  conclusion  is  unavoid- 
able that  the  contract  was  with  him.  The  difficulty  is,  that  the 
plaintiffs,  if  they  had  any  other  intention,  neglected  then  to 
disclose  it.  It  was  a  mistake  on  one  side,  of  which  the  other 
had  no  knowledge  or  suspicion,  and  which  consisted  solely  in 
the  unauthorized  assumption  that  Leonard  was  acting  as  agent 
for  a  third  person,  and  not  for  himself. 

It  is  elementary  in  the  law  governing  contracts  of  sale  and 
all  other  contracts,  that  the  agreement  is  to  be  ascertained  ex- 
clusively from  the  conduct  of  the  parties  and  the  language  used 
when  it  is  made,  as  applied  to  the  subject-matter  and  to  known 
usages.  The  assent  must  be  mutual,  and  the  union  of  minds  is 
ascertained  by  some  medium  of  communication.  A  proposal  is 
made  by  one  party,  and  is  acceded  to  by  the  other  in  some  kind 
of  language  mutually  intelligible,  and  this  is  mutual  assent. 
Met.  Con.  14.  A  party  cannot  escape  the  natural  and  reason- 
able interpretation  which  must  be  put  on  what  he  says  and  does, 
by  showing  that  his  words  were  used  and  his  acts  done  with  a 
different  and  undisclosed  intention.  Foster?;.  Ropes,  iii  Mass. 
10,  16  ;  Daley  v.  Carney,  117  Mass.  288  ;  Wright  v.  Willis, 
2  Allen,  191.  2  Chit.  Con.  (nth  Am.  ed.)  1022.  It  is  not  the 
secret  purpose,  but  the  expressed  intention,  which  must  gov- 
ern, in  the  absence  of  fraud  and  mutual  mistake.  A  party  is 
estopped  to  deny  that  the  intention  communicated  to  the  other 
side  was  not  his  real  intention.  To  hold  otherwise  would  be  to 
put  it  in  the  power  of  the  vendor  in  every  case  to  defeat  the 
title  of  the  vendee,  and  of  those  holding  under  him,  by  proving 
that  he  intended  to  sell  to  another  person,  and  so  there  was  no 
mutual  assent  to  the  contract. 

In  Boston  Ice  Co.  v.  Potter,  123  Mass.  28,  cited  by  the  plain- 
tiffs, there  was  no  privity  of  contract  established  between  the 


26  EDMUNDS  V.  MERCHANTS'  DES.  TRANS.  CO.     [CHAP.  I. 

plaintiff  and  the  defendant.  There  was  no  evidence  afforded  in 
the  conduct  and  dealings  of  the  parties,  that  the  defendant 
assented  to  any  contract  whatever  with  the  plaintiff.  A  stranger 
attenrpted  to  perform  the  contract  of  another  party  with  the 
defendant. 

In  Hardman  v.  Booth,  i  H.  &  C.  803,  there  was  abundant  evi- 
dence that  the  contract  was  with  another  party,  to  whom  the 
goods  were  sent,  and  not  with  the  person  who  obtained  posses- 
sion of  them  and  sold  them  to  the  defendant.  In  Mitchell  v. 
Lapage,  Holt  N.  P.  253,  the  goods  were  expressly  bought  of  a 
firm,  which,  without  the  knowledge  of  the  broker,  had  been 
dissolved  by  the  withdrawal  of  two  of  its  members. 

We  are  referred  to  no  case  which  supports  the  claim  here 
made  by  the  plaintiffs. 

Judgment  for  the  defendant. 


JOHN     EDMUNDS    and    Another    v.    MERCHANTS'    DE- 
SPATCH   TRANSPORTATION    COMPANY. 

JOSIAH    C.   BENNETT  and  Another  v.  SAME. 

C.   H.  ABORN  AND  Another  v.   SAME. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  July  3, 

1883. 

[Reported  in  135  Massac/msetis  Reports  283. J 

Three  actions  of  tort,  with  counts  in  contract,  against  a 
common  carrier,  to  recover  the  value  of  certain  goods  entrusted 
to  the  defendant  by  the  plaintiffs,  at  Boston,  for  carriage  to 
Dayton,  O.  At  the  trial  in  the  Superior  Court,  before  Rock- 
well, J.,  the  jury  returned  verdicts  for  the  plaintiffs  ;  and  the 
defendant  alleged  exceptions.     The  facts  appear  in  the  opinion. 

A.  Jiuss  &"  B.  Kimball  for  the  defendant. 

S.  B.  Allen  {JV.  B.  Allen  with  him)  for  the  plaintiffs. 

Morton,  C.J.  These  three  cases  were  tried  together.  In 
some  features  they  resemble  the  case  of  Samuel  v.  Cheney,  ante, 
278.  In  other  material  features  they  differ  from  it.  They  also 
in  some  respects  differ  from  each  other.  In  two  of  the  cases,  a 
swindler,  representing  himself  to  be  Edward  Pape  of  Dayton,  O., 
who  is  a  reputable  and  responsible  merchant,  appeared  person- 
ally in  Boston,  and  bought  of  the  plaintiffs  the  goods  which  are 
the  subject  of  the  suits  respectively.  In  those  cases,  we  think 
it  clear,  upon   principle  and   authority,  that  there  was  a  sale, 


SEC.  l^.]       EDMUNDS  7'.  MERCHANTS'  DES.  TRANS.  CO.  2/ 

and  the  property  in  the  goods  passed  to  the  purchaser.  The 
minds  of  the,  parties  met  and  agreed  upon  all  the  terms  of  the 
sale,  the  thing  sold,  the  price  and  time  of  payment,  the  person 
selling,  and  the  person  buying.  The  fact  that  the  seller  "was 
induced  to  sell  by  fraud  of  the  buyer  made  the  sale  voidable, 
but  not  void.  He  could  not  have  supposed  that  he  was  selling 
to  any  other  person  ;  his  intention  was  to  sell  to  the  person 
present,  and  identified  by  sight  and  hearing  ;  it  does  not  defeat 
the  sale  because  the  buyer  assumed  a  false  name,  or  practised 
any  otlier  deceit  to  induce  the  vendor  to  sell. 

In  Cundy  v.  Lindsay,  3  App.  Cas.  459,  464,  where  the  ques- 
tion was  whether  a  man,  who  in  good  faith  had  bought  chattel.; 
of  a  swindler  who  had  obtained  possession  of  them  by  fraud, 
could  hold  them  against  the  former  owner,  Lord  Chancellor 
Cairns  states  the  rule  to  be  that,  "if  it  turns  out  that  the  chat- 
tel has  come  into  the  hands  of  the  person  who  professed  to  sell 
it,  by  a  de  facto  contract — that  is  to  say,  a  contract  which  has 
purported  to  pass  the  property  to  him  from  the  owner  of  the 
property,  there  the  purchaser  will  obtain  a  good  title." 

In  the  cases  before  us,  there  was  a  de  facto  contract,  purport- 
ing, and  by  which  the  plaintiffs  intended,  to  pass  the  property 
and  possession  of  the  goods  to  the  person  buying  them  ;  and 
we  are  of  opinion  that  the  property  did  pass  to  the  swindler 
who  bought  the  goods.  The  sale  was  voidable  by  the  plain- 
tiffs ;  but  the  defendant,  the  carrier  by  whom  they  were  for- 
warded, had  no  duty  to  inquire  into  its  validity.  The  person 
who  bought  them,  and  who  called  himself  Edward  Pape,  owned 
the  goods,  and  upon  their  arrival  in  Dayton  had  the  right  to 
demand  them  of  the  carrier.  In  delivering  them  to  him,  the 
carrier  was  guilty  of  no  fault  or  negligence.  It  delivered  them 
to  the  person  who  bought  and  owned  them,  who  went  by  the 
name  of  Edward  Pape,  and  thus  answered  the  direction  upon 
the  packages,  and  who  was  the  person  to  whom  the  plaintiffs 
sent  them.  Dunbar  z;.  Boston  &  Providence  Railroad,  no  Mass. 
26.  The  learned  judge  who  tried  the  cases  in  the  Superior 
Court  based  his  charge  upon  a  different  view  of  the  law  ;  and, 
as  the  three  cases  were  tried  together,  there  must  be  a  new  trial 
in  each. 

It  seems  to  have  been  assumed  that  the  same  questions  are 
raised  in  each  case.  It  is  proper  that  we  should  add  that  the 
third  case  differs  materially  from  the  others.  In  that  case,  the 
contract  did  not  purport,  nor  the  plaintiffs  intend,  to  sell  to  the 
person  who  was  present  and  ordered  the  goods.  The  swindler 
introduced  himself  as  a  brother  of  Edward  Pape  of  Dayton,  O., 
buying  for  him.      By   referring   to   the   mercantile   agency,    he 


28  ROBERTSON  V.    COLEMAN.  [cHAP.  I. 

tacitly  represented  that  he  was  buying  for  the  Edward  Pape 
who  was  there  recorded  as  a  man  of  means.  The  plaintiffs  un- 
derstood that  they  were  selling,  and  intended  to  sell,  to  the  real 
Edward  Pape.  There  was  no  contract  made  with  him,  because 
the  swindler  who  acted  as  his  agent  had  no  authority,  but  there 
was  no  contract  of  sale  made  with  any  one  else.  The  relation 
of  vendor  and  vendee  never  existed  between  the  plaintiffs  and 
the  swindler.  The  property  in  the  goods,  therefore,  did  not 
pass  to  the  swindler  ;  and  the  defendant  cannot  defend,  as  in 
the  other  cases,  upon  the  ground  that  it  has  delivered  the  goods 
to  the  real  owner.  Hardman  v.  Booth,  32  L.  J.  (N.  S.)  Ex. 
105  ;  Kingsford  v.  Merry,  26  L.  J.  (N.  S.)  Ex.  83  ;  Barker  v. 
Dinsmore,  72  Penn.  St.  427. 

Whether  the  defendant  has  any  other  justification  or  excuse 
for  delivering  the  goods  to  the  swindler  is  a  question  not  raised 
by  this  bill  of  exceptions,  and  not  considered  at  the  trial  ;  and 
therefore  we  cannot  express  an  opinion  upon  it. 

Exceptions  sustained. 


JOSEPH    ROBERTSON    v.    MOSES    COLEMAN    and   An- 
other. 

In    the   Supreme    Judicial    Court    of    Massachusetts,    Feb- 
ruary 26,  1886. 

[Reported  zn  141  Massachusetts  Reports  231.] 

Contract  to  recover  the  amount  of  a  bank  check  for  $91.08, 
signed  by  the  defendants,  dated  March  31st,  1883,  and  payable 
to  the  order  of  Charles  Barney.'  Trial  in  the  Superior  Court, 
before  Knowlton,  J.,  who  reported  the  case  for  the  determina- 
tion of  this  court,  in  substance  as  follows  : 

On  March  27th,  1883,  a  young  man  went  to  the  Metropolitan 
Hotel  in  Boston,  of  which  the  plaintiff  was  the  proprietor,  and 
registered  his  name  as  Charles  Barney.  On  that  or  the  next 
day  he  took  to  the  place  of  business  of  the  defendants,  who  sold 
property  as  auctioneers,  a  team,  of  which  he  represented  him- 
self to  be  the  owner,  and  which  he  desired  them  to  sell  on  his 
account.  He  gave  his  name  there  as  Charles  Barney.  In  reply 
to  an  inquiry  regarding  him,  they  received  a  message  by  tele- 
graph that  Charles  Barney,  of  Swanzey,  was  a  responsible  and 
trustworthy  man.  Believing  him  to  be  Charles  Barney,  of 
Swanzey,  they  sold  the  horse  and  carriage  for  him,  and  three 
days  afterward  gave  him,  in  payment  of  the  money  received, 

'  See  sicpra,  p.  r,  n.  i.— Ed. 


SEC.  ll>.]  ROBERTSON   V.    COLEMAN.  29 

the  check  declared  on.  On  March  31st,  he  left  the  plaintiff's 
hotel,  where  he  had  been  staying  in  the  mean  time  under  tlie 
name  of  Charles  Barney,  and,  before  going,  he  gave  the  check 
to  the  plaintiff  in  payment  of  his  board  bill  of  $16.75,  and  re- 
ceived the  balance  of  its  amount  in  cash  from  the  plaintiff.  At 
the  same  time  he  endorsed  it  in  blank  with  the  name  of  Charles 
Barney.  It  turned  out  that  Charles  Barney  was  not  his  true 
name,  and  there  was  no  evidence  that  he  had  ever  gone  by  that 
name  before  registering  at  the  plaintiff's  hotel.  The  defendants 
discovered  that  he  had  stolen  the  team  which  he  left  with  them, 
and,  by  their  order,  the  bank  upon  which  the  check  was  drawn 
refused  to  pay  it.  It  was  in  evidence  that  there  was  a  person 
in  existence  by  the  name  of  Charles  Barney,  of  Swanze}'.  It 
appeared  that  the  plaintiff  made  no  further  inquiry  as  to  the 
identity  of  the  paj'ee  than  for  information  which  was  founded 
upon  the  representations  of  his  said  lodger. 

Upon  these  facts,  the  judge  instructed  the  jury  as  follows  : 
"  If  the  person  who  took  the  team  to  the  defendants'  place  of 
business  left  it  there  under  the  name  of  Charles  Barney,  and 
the  defendants,  in  receiving  it,  dealt  with  him  as  Charles  Bar- 
ney, and  sold  the  team  for  him,  and  three  days  afterward  gave 
him  the  check  in  the  belief  that  he  was  Charles  Barney,  of 
Swanzey,  and  was  the  owner  of  the  team,  and  said  person  had 
in  the  mean  time  been  boarding  at  the  plaintiff's  hotel  under 
that  name,  and  had  gone  by  that  name  while  at  said  hotel,  the 
plaintiff,  upon  the  receipt  from  him  of  said  check  in  good  faith, 
for  a  valuable  consideration,  with  his  endorsement  upon  it, 
acquired  a  good  title  to  it  as  against  the  defendants." 

The  jury  returned  a  verdict  for  the  plaintiff.  If  the  instruc- 
tion was  correct,  judgment  was  to  be  entered  upon  the  verdict  ; 
otherwise,  such  order  to  be  made  as  law  and  justice  might 
require. 

S.  J.   Thomas  o^  C.  P.  Sampson  for  the  defendants. 

C.  F.  Kittredge  for  the  plaintiff. 

Field,  J.  The  name  of  a  person  is  the  verbal  designation  by 
which  he  is  known,  but  the  visible  presence  of  a  person  affords 
surer  means  of  identifying  him  than  his  name.  The  defendants, 
for  a  valuable  consideration,  gave  the  check  to  a  person  Avho 
said  his  name  was  Charles  Barney,  and  whose  name  they  be- 
lieved to  be  Charles  Barney,  and  they  made  it  payable  to  the 
order  of  Charles  Barney,  intending  thereby  the  person  to  whom 
they  gave  the  check.  The  plaintiff  received  this  check  for  a 
valuable  consideration,  in  good  faith,  from  the  same  person, 
whom  he  believed  to  be  Charles  Barney,  and  who  endorsed  the 
check  by  that  name.     It  appears  that  the  defendants  thought 


30  BOYLAN   V.  HOT   SPRINGS   RAILROAD  CO.       [CHAP.  1. 

the  person  to  whom  they  gave  the  check  was  Charles  Barney,  of 
Swanzey,  a  person  in  existence,  but  it  does  not  appear  that  they 
thought  so  from  any  representations  made  by  the  person  to 
whom  they  gave  the  check,  although  this,  perhaps,  is  immate- 
rial. It  is  clear  from  these  facts,  that, -although  the  defendants 
may  have  been  mistaken  in  the  sort  of  man  the  person  they 
dealt  with  was,  this  person  was  the  person  intended  by  them  as 
the  payee  of  the  check,  designated  by  the  name  he  was  called 
in  the  transaction,  and  that  his  endorsement  of  it  was  the  en- 
dorsement of  the  payee  of  the  check  by  that  name.  The  con- 
tract of  the  defendants  was  to  pay  the  amount  of  the  check  to 
this  person  or  his  order,  and  he  has  ordered  it  paid  to  the  plain- 
tiff. If  this  person  obtained  the  check  from  the  defendants  by 
fraudulent  representations,  the  plaintiff  took  it  in  good  faith 
and  for  value.  See  Samuel  v.  Cheney,  135  Mass.  278  ;  Ed- 
munds V.  Merchants'  Transportation  Co.  135  Mass.  283. 
Judgment  on  the  verdict. 


BOYLAN  V.  HOT   SPRINGS    RAILROAD    COMPANY. 

In  the  Supreme    Court    of    the   United  States,   November 

II,  1889. 

[Reported  z'n  132  United  States  Reports  146.] 

This  was  an  action  of  assumpsit  against  a  railroad  corporation 
by  a  person  who,  after  taking  passage  on  one  of  its  trains,  was 
forcibly  expelled  by  the  conductor. 

At  the  trial  in  the  Circuit  Court,  the  plaintiff  testified  that  on 
March  i8th,  1882,  he  purchased  at  the  office  of  the  Wabash,  St. 
Louis  &  Pacific  Railway  Company,  in  Chicago,  a  ticket  for  a 
passage  to  Hot  Springs  and  back  (which  is  copied  in  the  mar- 
gin,' and  which,  as  was  alleged  in  the  declaration  and  appeared 

'  Issued  by  Wabash,  St.  Louis  &  Pacific  Railway.  Tourist's  special  con- 
tract. Good  for  one  first-class  passage  to  Hot  Springs,  Ark.,  and  return, 
when  officially  stamped  on  the  back  hereof,  and  presented  with  coupons 
attached. 

In  consideration  of  the  reduced  rate  at  which  this  ticket  is  sold.  I,  the 
undersigned,  agree  to  and  with  the  several  companies  over  whose  lines  this 
ticket  entitles  me  to  be  carried,  as  follows,  to  wit  : 

1.  That  in  selling  this  ticket  the  Wabash,  St.  Louis  &  Pacific  Railway 
Company  acts  as  agent,  and  is  not  responsible  beyond  its  own  line. 

2.  That  this  ticket  is  not  transferable,  and  no  stop-over  at  any  intermedi- 
ate point  will  be  allowed,  unless  specially  provided  for  by  the  local  regula- 
tions of  the  lines  over  which  it  reads. 

3.  That  any  alteration  whatever  of  this  ticket  renders  it  void. 


SEC.  id.]         BOYLAN   7'.  HOT    SPRINGS    RAILROAD  CO.  3! 

upon  the  face  of  the  ticket,  was  then  signed  by  him  as  well  as 
by  the  ticket  agent,  and  witnessed  by  a  third  person),  and  upon 
this  ticket  travelled  on  the  defendant's  railroad  to  Hot  Springs. 

He  was  asked  by  his  counsel  when  he  first  actually  knew  that 
the  ticket  required  him  to  have  it  stamped  at  Hot  Springs. 
The  question  was  objected  to  by  the  defendant,  and  ruled  out 
by  the  Court. 

He  further  testified  that  on  April  19th,  18S2,  when  leaving 
Hot  Springs  on  his  return  to  Chicago,  he  went  to  the  baggage- 
office  and  requested  the  baggage-master  to  check  his  baggage, 
and,  on  his  asking  to  see  the  ticket,  showed  it  to  him,  and  he 
thereupon  punched  the  ticket,  checked  the  baggage,  and  gave 
him  the  checks  for  it  ;  and  also  that  the  gateman  asked  to  see 
the  ticket,  and  he  showed  it  to  him,  and  then  passed  through 
the  gate,  and  took  his  seat  in  the  cars.  This  testimony  was  ob- 
jected to  by  the  defendant,  on  the  ground  that  no  statement  or 
action  of  the  baggage-master,  or  of  the  gateman,  would  con- 
stitute a  waiver  of  any  of  the  written  conditions  of  the  contract  ; 
and  it  was  admitted  by  the  Court,  subject  to  the  objection. 

4.  That  it  is  good  for  going  passage  only  five  (5)  days  from  date  of  sale, 
as  stamped  on  back  and  written  below. 

5.  That  it  is  not  good  for  return  passage,  unless  the  holder  identifies  him- 
self as  the  original  purchaser,  to  the  satisfaction  of  the  authorized  agent  of 
the  Hot  Springs  Railroad,  at  Hot  Springs,  Ark.,  within  fifty-five  (55)  days 
from  date  of  sale  ;  and  when  officially  signed  and  dated  in  ink,  and  duly 
stamped  by  said  agent,  this  ticket  shall  then  be  good  only  five  (5)  days  from 
such  date. 

6.  That  I.  the  original  purchaser,  hereby  agree  to  sign  my  name,  and 
otherwise  identify  myself  as  such,  whenever  called  upon  to  do  so  by  any 
conductor  or  agent  of  the  line  or  lines  over  which  this  ticket  reads. 

7.  That  baggage  liability  is  limited  to  wearing  apparel  not  exceeding  $100 
in  value. 

8.  That  the  coupons  belonging  to  this  ticket  will  not  be  received  for  pas- 
sage if  detached. 

9.  That  my  signature  shall  be  in  manuscript  and  in  ink. 

10.  That  unless  all  the  conditions  on  this  ticket  are  fully  complied  with, 
it  shall  be  void. 

11.  That  I  will  not  hold  any  of  the  lines  named  in  this  ticket  liable  for 
damages  on  account  of  any  statement  not  in  accordance  .with  this  contract 
made  by  any  employe  of  said  lines. 

12.  And  it  is  especially  agreed  and  understood  by  me  that  no  agent  or 
employe  of  any  of  the  lines  named  in  this  ticket  has  any  power  to  alter, 
modify  or  waive  in  any  manner  any  of  the  conditions  named  in  this  con- 
tract. 

Signature  :  P.  C.  Boylan. 

Witness  :  H.  C.  Keeran. 

Date  of  sale,  March  18th,  1882. 

Geo.  H.  Daniels, 

Gen'/  Ticket  Agent. 


32  BOYLAN   V.  HOT   SPRINGS   RAILROAD  CO.       [CHAP.  I. 

The  plaintiff  then  testified  that  soon  after  leaving  Hot  Springs 
the  conductor,  in  taking  the  tickets  of  passengers,  came  to  him, 
and,  upon  being  shown  his  ticket,  said  it  was  not  good,  because 
he  had  failed  to  have  it  stamped  at  Hot  Springs  ;  the  plaintiff 
replied  that  the  baggage-master,  when  checking  his  baggage, 
had  said  nothing  to  him  about  it,  and  he  did  not  know  it  was 
necessary  ;  the  conductor  answered  that  he  must  either  go  back 
to  Hot  Springs  and  have  the  ticket  stamped,  or  else  pay  full 
fare,  but  did  not  demand  any  specific  sum  of  fare,  or  tell  him 
what  the  fare  was,  and  upon  his  refusing  to  pay  another  fare  or 
to  leave  the  train,  forcibly  put  him  off  at  the  next  station,  not- 
withstanding he  resisted  as  much  as  he  could,  and  in  so  doing 
injured  him  in  body  and  health. 

On  motion  of  the  defendant,  upon  the  grounds,  among  others, 
that  this  was  an  action  of  assumpsit  for  breach  of  contract,  and 
that  the  plaintiff  failed  to  produce  to  the  conductor  a  ticket  or 
voucher  which  entitled  him  to  be  carried  on  the  train,  and  that 
until  the  plaintiff  identified  himself  at  the  office  at  Hot  Springs 
and  had  the  ticket  stamped  and  signed  by  the  agent  there,  he 
had  no  subsisting  contract  between  himself  and  the  defendant 
for  a  return  passage  to  Chicago,  the  Court  declined  to  permit 
the  plaintiff  to  testify  to  the  consequent  injury  to  his  business 
and  to  his  ability  to  earn  money,  excluded  all  evidence  offered 
as  to  the  force  used  in  removing  him  from  the  train,  and  as  to 
his  expulsion  from  the  train  (although  corresponding  to  allega- 
tions inserted  in  the  declaration),  and  directed  a  verdict  for  the 
defendant. 

The  plaintiff  excepted  to  the  rulings  of  the  Court,  and,  after 
verdict  and  judgment  for  the  defendant,  sued  out  this  writ  of 
error. 

Charles  Carroll  Bonney  for  plaintift"  in  error. 

G.   W.  Kretzinger  for  defendant  in  error. 

Justice  Gray,  after  stating  the  case  as  above  reported,  deliv- 
ered the  opinion  of  the  court. 

This  is  an  action  of  assumpsit,  and  cannot  be  maintained  with- 
out proof  of  a  breach  of  contract  by  the  defendant  to  carry  the 
plaintiff.  The'  only  contract  between  the  parties  was  an  express 
one,  signed  by  the  plaintiff  himself  as  well  as  by  the  defendant's 
agent  at  Chicago,  and  contained  in  a  ticket  for  a  passage  to 
Hot  Springs  and  back.  The  plaintiff,  having  assented  to  that 
contract  by  accepting  and  signing  it,  was  bound  by  the  condi- 
tions expressed  in  it,  whether  he  did  or  did  not  read  them  or 
know  what  they  were.  The  question,  when  he  first  knew  that 
the  ticket  required  him  to  have  it  stamped  at  Hot  Springs,  was 
therefore  rightlv  excluded  as  immaterial. 


SEC.  I^.J         BOVLAN   V.  HOT   SPRINGS   RAILROAD  CO.  33 

By  the  express  conditions  of  the  plaintiff's  contract,  he  had 
no  right  to  a  return  passage  under  his  ticket,  unless  it  bore  the 
signature  and  stamp  of  the  defendant's  agent  at  Hot  Springs  ; 
and  no  agent  or  employe  of  the  defendant  was  authorized  to 
alter,  modify  or  waive  any  condition  of  the  contract. 

Neither  the  action  of  the  baggage-master  in  puncliing  the 
ticket  and  checking  the  plaintiff's  baggage,  nor  tliat  of  tlie  gate- 
man  in  admitting  him  to  the  train,  therefore,  could  bind  tlie  de- 
fendant to  carry  him,  or  estop  it  to  deny  his  right  to  be  carried. 

The  plaintiff  did  not  have  his  ticket  stamped  at  Hot  Springs, 
or  make  any  attempt  to  do  so,  but  insisted  on  the  right  to  make 
the  return  trip  under  the  unstamped  ticket,  and  without  paying 
further  fare.  As  he  absolutely  declined  to  pay  any  such  fare, 
the  fact  that  the  conductor  did  not  inform  him  of  its  amount  is 
immaterial. 

The  unstamped  ticket  giving  him  no  right  to  a  return  pas- 
sage, and  he  not  having  paid,  but  absolutely  refusing  to  pay, 
the  usual  fare,  there  was  no  contract  in  force  between  him  and 
the  defendant  to  carry  him  back  from  Hot  Springs. 

There  being  no  such  contract  in  force,  there  could  be  no 
breach  of  it  ;  and  no  breach  of  contract  being  shown,  this  action 
of  assumpsit,  sounding  in  contract  only,  and  not  in  tort,  cannot 
be  maintained  to  recover  any  damages,  direct  or  consequential, 
for  the  plaintiff's  expulsion  from  the  defendant's  train.  The 
plaintiff,  therefore,  has  not  been  prejudiced  by  the  exclusion  of 
the  evidence  concerning  the  circumstances  attending  his  expul- 
sion and  the  consequent  injuries  to  him  or  his  business. 

The  case  is  substantially  governed  by  the  judgment  of  this 
Court  in  Mosher  v.  St.  Louis,  Iron  Mountain  &  Southern  Rail- 
way, 127  U.  S.  390,  and  our  conclusion  in  the  case  at  bar  is  in 
accord  with  the  general  current  of  decision  in  the  courts  of  the 
several  States.  See,  besides  the  cases  cited  at  the  end  of  that 
judgment,  the  following  :  Churchill  v.  Chicago  &  Alton  Rail- 
road, 67  111.  390  ;  Petrie  v.  Pennsylvania  Railroad,  13  Vroom 
449  ;  Pennington  v.  Philadelphia,  Wilmington  &  Baltimore 
Railroad,  62  Md.  95  ;  Rawitzky  v.  Louisville  &  Nashville  Rail- 
road, 40  La.  Ann.  47. 

Nor  was  anything  inconsistent  with  this  conclusion  decided 
in  either  of  the  English  cases  relied  on  by  the  learned  counsel 
for  the  plaintiff.  Each  of  those  cases  turned  upon  the  validity 
and  effect  of  a  by-law  made  by  the  railway  company,  not  of  a 
contract  signed  by  the  plaintiff  ;  and  otherwise  essentially  dif- 
^fered  from  the  case  at  bar. 

In  Jennings  v.  Great  Northern  Railway,  L.  R.  i  Q.  B.  7,  the 
by-law  required  every  passenger  to  obtain  a  ticket  before  enter- 


34  BOYLAX   V.  HOT   SPRINGS   RAILROAD  CO.       [CHAP.  I. 

ing  the  train,  and  to  show  and  deliver  up  his  ticket  whenever 
demanded.  The  plaintiff  took  a  ticket  for  himself,  as  well  as 
tickets  for  three  horses  and  three  boys  attending  them,  by  a 
particular  train,  which  was  afterward  divided  into  two,  in  the 
first  of  which  the  plaintiff  travelled,  taking  all  the  tickets  with 
him  ;  and  when  the  second  train  was  about  to  start,  the  boys 
were  asked  to  produce  their  tickets,  and,  being  unable  to  do  so, 
were  prevented  by  the  company's  servants  from  proceeding 
with  the  horses.  An  action  by  the  plaintiff  against  the  com- 
pany for  not  carrying  his  servants  was  sustained,  because  the 
company  contracted  with  him  only,  and  delivered  all  the  tickets 
to  him  ;  and  Lord  Chief  Justice  Cockburn,  with  whom  the 
other  judges  concurred,  said  :  "It  is  unnecessary  to  determine 
whether,  if  the  company  had  given  the  tickets  to  the  boys,  and 
the  boys  had  not  produced  their  tickets,  it  would  have  been 
competent  for  the  company  to  have  turned  them  out  of  the 
carriage." 

In  Butler  v.  Manchester,  Sheffield  &  Lincolnshire  Railway, 
21  Q.  B.  D.  207,  the  ticket  referred  to  conditions  published  by 
the  company,  containing  a  similar  by-law,  which  further  pro- 
vided that  any  passenger  travelling  without  a  ticket,  or  not 
showing  or  delivering  it  up  when  requested,  should  pay  the  fare 
from  the  station  whence  the  train  originally  started.  The 
plaintiff,  having  lost  his  ticket,  was  unable  to  produce  it  when 
demanded,  and,  refusing  to  pay  such  fare,  was  forcibly  removed 
from  the  train  by  the  defendant's  servants.  The  Court  of 
Appeal,  reversing  a  judgment  of  the  Queen's  Bench  Division, 
held  the  company  liable,  because  the  plaintiff  was  lawfully  on 
the  train  under  a  contract  of  the  company  to  carry  him,  and  no 
right  to  expel  him  forcibly  could  be  inferred  from  the  provisions 
of  the  by-law  in  question,  requiring  him  to  show  his  ticket  or 
pay  the  fare  ;  and  each  of  the  judges  cautiously  abstained  from 
expressing  a  decided  opinion  upon  the  question  whether  a  by- 
law could  have  been  so  framed  as  to  justify  the  course  taken  by 
the  company. 

Judgment  affirmed. 


SKC.  id.]  FONSECA   7>.    CUNARD   STEAMSHIP   CO,  35 


PHINEAS    FONSECA   v.    CUNARD    STEAMSHIP 
COMPANY. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  May  19, 

1891. 

\Reported  in  153  Massachusetts  Reports  553. J 

Contract,  with  a  count  in  tort,  against  the  defendant,  as 
owner  of  the  steamship  Samaria,  for  damage  to  the  plaintiff's 
trunk  and  its  contents.  Trial  in  the  Superior  Court,  without  a 
jury,  before  Pitman,  J.,  who  reported  the  following  case  for  the 
determination  of  this  court. 

The  material  facts,  as  found  by  an  auditor  to  whom  the  case 
was  referred,  were  as  follows.  The  plaintiff  took  passage  on 
the  defendant's  steamer  from  Liverpool  to  Boston.  He  had 
with  him  on  the  ship  his  trunk,  containing  articles  of  clothing 
and  personal  property  reasonable  and  proper  for  an  ocean  trav- 
eller to  carry  as  personal  baggage,  all  of  which  were  entirely 
ruined  on  the  voyage  by  the  negligence  of  the  defendant. 
When  the  plaintiff  engaged  his  passage  in  London,  he  received 
a  passage  ticket  from  the  defendant's  agent  there.  This  ticket 
consisted  of  a  sheet  of  paper  of  large  quarto  size,  the  face  and 
back  of  which  were  covered  with  written  and  printed  matter. 
Near  the  top  of  the  face  of  the  ticket,  after  the  name  of  the 
defendant  corporation  and  its  list  of  offices  in  Great  Britain, 
appeared  in  bold  type  the  following  :  "  Passengers'  Contract 
Ticket."  Upon  the  side  margins  were  various  printed  notices 
to  passengers,  including  the  following  :  "  All  passengers  are  re- 
quested to  take  notice  that  the  owners  of  the  ship  do  not  hold 
themselves  responsible  for  detention  or  delay  arising  from  acci- 
dent, extraordinary  or  unavoidable  circumstances,  nor  for  loss, 
detention,  or  damage  to  luggage."  The  body  of  the  face  of 
the  ticket  contained  statements  of  the  rights  of  the  passenger 
respecting  his  person  and  his  baggage,  the  plaintiff's  name,  age, 
and  occupation,  the  bills  of  fare  for  each  day  of  the  week,  and 
the  hours  for  meals,  etc.  At  the  bottom  was  printed  the  follow- 
ing :  "  Passengers'  luggage  is  carried  only  upon  the  conditions 
set  forth  on  the  back  hereof."  Upon  the  back,  among  other 
printed  matter,  was  the  following  :  "  The  company  is  not  liable 
for  loss  of  or  injury  to  the  passenger  or  his  luggage,  or  delay  in 
the  voyage,  whether  arising  from  the  act  of  God,  the  Queen's 
enemies,  perils  of  the  sea,  rivers,  or  navigation,  restraint  of 
princes,  rulers,  and  peoples,  barratry,  or  negligence  of  the  com- 
pany's servants  (whether  on  board  the  steamer  or  not),  defect 


36  FONSECA   V.    CUNARD    STEAMSHIP    CO.  [CHAP.  I. 

in  the  steamer,  her  machinery,  gear,  or  fittings,  or  from  any 
other  cause  of  whatsoever  nature." 

When  the  plaintiff  received  his  ticket,  his  attention  was  not 
called  in  any  wa}'  to  any  limitation   of  the  defendant's  liability. 

The  judge,  upon  these  facts,  found  and  ruled  "  that  the  con- 
tract was  a  British  contract  ;  that,  by  the  English  law,  a  carrier 
may  by  contract  exempt  himself  from  liability,  even  for  loss 
caused  by  his  negligence  ;  that  in  this  case,  as  the  carrier  has 
so  attempted,  and  the  terms  are  broad  enough  to  exonerate  him, 
the  question  remains  of  assent  on  the  part  of  the  plaintiff.  This 
has  been  decided  in  Massachusetts  to  be  a  question  of  evidence, 
in  which  the  lex  fori  is  to  govern  ;  that  although  it  has  been 
decided  that  the  law  conclusively  presumes  that  a  consignor 
knows  and  assents  to  the  terms  of  a  bill  of  lading  or  a  shipping 
receipt  which  he  takes  without  dissent,  yet  a  passenger  ticket, 
even  though  it  be  called  a  '  contract  ticket,'  does  not  stand  on 
the  same  footing,  that  in  this  case  assent  is  not  a  conclusion  of 
law,  and  is  not  proved  as  a  matter  of  fact."  Upon  the  whole 
case,  the  judge  ruled  that  the  defendant  company  was  not  ex- 
empted from  liability  by  the  contract  ticket,  and  found  for  the 
plaintiff. 

If  the  rulings  were  wrong,  the  verdict  was  to  be  set  aside,  and 
judgment  entered  for  the  defendant  ;  otherwise,  the  judgment 
was  to  be  entered  on  the  finding. 

J.  H.  Appleton  for  the  plaintiff. 

G.  Puhiain  o?'  T.  Russell  for  the  defendant. 

Knowlton,  J.  It  is  not  expressly  stated  in  the  report,  that 
the  law  of  England  was  put  in  evidence  as  a  fact  in  the  case,  but 
it  seems  to  have  been  assumed  at  the  trial,  if  not  expressly 
agreed,  that  this  law  should  be  considered,  and  the  argument 
before  this  court  has  proceeded  on  the  same  assumption.  It  is 
conceded  that  the  presiding  justice  correctly  found  and  ruled 
as  follows  :  "  That  the  contract  was  a  British  contract  ;  that, 
by  the  English  law,  a  carrier  may  by  contract  exempt  himself 
from  liability,  even  for  loss  caused  by  his  negligence  ;  that  in 
this  case,  as  the  carrier  has  so  attempted,  and  the  terms  are 
broad  enough  to  exonerate  him,  the  question  remains  of  assent 
on  the  part  of  the  plaintiff."  That  part  of  his  ruling  which  is 
called  in  question  by  the  defendant  is  as  follows  :  "  This  has 
been  decided  in  Massachusetts  to  be  a  question  of  evidence,  in 
which  the  lex  fori  is  to  govern  ;  that  although  it  has  been  de- 
cided that  the  law  conclusively  presumes  that  a  consignor  knows 
and  assents  to  the  terms  of  a  bill  of  lading  or  a  shipping  receipt 
which  he  takes  without  dissent,   yet  a  passenger  ticket,   even 


SEC.  I^.]  FONSECA   V.    CUNARD    STEAMSHIP   CO.  37 

though  it  be  called  a  '  contract  ticket,'  does  not  stand  on  the 
same  footing  ;  that  in  this  case  assent  is  not  a  conclusion  of  law, 
and  is  not  proved  as  a  matter  of  fact." 

The  principal  question  before  us  is  whether  the  plaintiff,  by 
reason  of  his  acceptance  and  use  of  his  ticket,  shall  be  conclu- 
sively held  to  have  assented  to  its  terms.  It  has  often  been  de- 
eded, that  one  who  accepts  a  contract,  and  proceeds  to  avail 
himself  of  its  provisions,  is  bound  by  the  stipulations  and  con- 
ditions expressed  in  it,  whether  he  reads  them  or  not.  Rice  v. 
Dwight  Manuf.  Co.  2  Cush.  80  ;  Grace  v.  Adams,  100  Mass. 
505  ;  Hoadley  v.  Northern  Transportation  Co.  115  Mass.  304; 
Monitor  Ins.  Co.  v.  Buffum,  115  Mass.  343  ;  Germania  Ins.  Co.  v. 
Memphis  &  Charlestown  Railroad,  72  N.  Y.  90.  This  rule  is  as 
applicable  to  contracts  for  the  carriage  of  persons  or  property 
as  to  contracts  of  any  other  kind.  Grace  v.  Adams,  100  Mass. 
505  ;  Boston  &  Maine  Railroad  v.  Chipman,  146  Mass.  107  ; 
Parker  z/.  South  Eastern  Railway,  2  C.  P.  D.  416,  428  ;  Harris  v. 
Great  Western  Railway,  i  Q.  B.  D.  515  ;  York  Co.  v.  Central 
Railroad,  3  Wall.  107  ;  Hill  v.  Syracuse,  Binghamton  &  New 
York  Railroad,  73  N.  Y.  351.  The  cases  in  which  it  is  held  that 
one  who  receives  a  ticket  that  appears  to  be  a  mere  check  show- 
ing the  points  between  which  he  is  entitled  to  be  carried,  and 
that  contains  conditions  on  its  back  which  he  does  not  read,  is 
not  bound  by  such  conditions,  do  not  fall  within  this  rule. 
Brown  v.  Eastern  Railroad,  11  Cush.  97  ;  Malone  v.  Boston  & 
Worcester  Railroad,  12  Gray,  388  ;  Henderson  v.  Stevenson, 
L.  R.  2  H.  L.  Sc.  470  ;  Quimby  v.  Vanderbilt,  17  N.  Y.  306  ; 
Railway  Co.  v.  Stevens,  95  U.  S.  655.  Such  a  ticket  does  not 
purport  to  be  a  contract  which  expressly  states  the  rights  of  the 
parties,  but  only  a  check  to  indicate  the  route  over  which  the 
passenger  is  to  be  carried,  and  he  is  not  expected  to  examine  it 
to  see  whether  it  contains  any  unusual  stipulations.  The  pre- 
cise question  in  the  present  case  is  whether  the  "  contract 
ticket"  was  of  such  a  kind  that  the  passenger  taking  it  should 
have  understood  that  it  was  a  contract  containing  stipulations 
which  would  determine  the  rights  of  the  parties  in  reference  to 
his  carriage.  If  so,  he  would  be  expected  to  read  it,  and  if  he 
failed  to  do  so,  he  is  bound  by  its  stipulations.  It  covered  with 
print  and  writing  the  greater  part  of  two  large  quarto  pages, 
and  bore  the  signature  of  the  defendant  company  affixed  by  its 
agent,  with  a  blank  space  for  the  signature  of  the  passenger. 
The  fact  that  it  was  not  signed  by  the  plaintiff  is  immaterial. 
Quimby  v.  Boston  &  Maine  Railroad,  150  Mass.  365,  and  cases 
there  cited.     It  contained  elaborate  provisions  in  regard  to  th^ 


28  FONSECA  V.   CUNARD    STEAMSHIP   CO.  [CHAP.  I. 

rights  of  the  passenger  on  the  voyage,  and  even  went  into  such 
detail  as  to  give  the  bill  of  fare  for  each  meal  in  the  day  for 
every  day  of  the  week.  No  one  who  could  read  could  glance 
at  it  without  seeing  that  it  undertook  expressly  to  prescribe  the 
particulars  which  should  govern  the  conduct  of  the  parties  until 
the  passenger  reached  the  port  of  destination.  In  that  particu- 
lar, it  was  entirely  unlike  the  pasteboard  tickets  which  are  com-' 
monly  sold  to  passengers  on  railroads.  In  reference  to  this 
question,  the  same  rules  of  law  apply  to  a  contract  to  carry  a 
passenger,  as  to  a  contract  for  the  transportation  of  goods. 
There  is  no  reason  why  a  consignor  who  is  bound  by  the  pro- 
visions of  a  bill  of  lading,  which  he  accepts  without  reading, 
should  not  be  equally  bound  by  the  terms  of  a  contract  in  sim- 
ilar form  to  receive  and  transport  him  as  a  passenger.  In  Hen- 
derson V.  Stevenson,  ubi  supra,  the  ticket  was  for  transportation 
a  short  distance,  from  Dublin  to  Whitehaven,  and  the  passenger 
was  held  not  bound  to  read  the  notice  on  the  back,  because  it 
did  not  purport  to  be  a  contract,  but  a  mere  check  given  as  evi- 
dence of  his  right  to  carriage.  In  later  English  cases,  it  is  said 
that  this  decision  went  to  the  extreme  limit  of  the  law,  and  it 
has  repeatedly  been  distinguished  from  cases  where  the  ticket 
was  in  a  different  form.  Parker  v.  South  Eastern  Railway, 
2  C.  P.  D.  416,  428  ;  Burke  z;.  South  Eastern  Railway,  5  C.  P.  D. 
I  ;  Harris  v.  Great  Western  Railway,  i  Q.  B.  D.  515.  The 
passenger  in  the  last-mentioned  case  had  a  coupon  ticket,  and 
it  was  held  that  he  was  bound  to  know  what  was  printed  as  a 
part  of  the  ticket.  Steers  v.  Liverpool,  New  York  &  Philadel- 
phia Steamship  Co.  57  N.  Y.  i,  is  in  its  essential  facts  almost 
identical  with  the  case  at  bar,  and  it  was  held  that  the  passenger 
was  bound  by  the  conditions  printed  on  the  ticket.  In  Quimby  v. 
Boston  &  Maine  Railroad,  ubt  supra,  the  same  principle  was 
applied  to  the  case  of  a  passenger  travelling  on  a  free  pass,  and 
no  sound  distinction  can  be  made  between  that  case  and  the 
case  at  bar. 

We  are  of  opinion  that  the  ticket  delivered  to  the  plaintiff 
purported  to  be  a  contract,  and  that  the  defendant  corporation 
had  a  right  to  assume  that  he  assented  to  its  provisions.  All 
these  provisions  are  equally  binding  on  him  as  if  he  had  read 
them. 

The  contract  being  valid  in  England,  where  it  was  made,  and 
the  plaintiff's  acceptance  of  it  under  the  circumstances  being 
equivalent  to  an  express  assent  to  it,  and  it  not  being  illegal  or 
immoral,  it  will  be  enforced  here,  notwithstanding  that  a  similar 
contract  made  in  Massachusetts  would  be  held  void  as  against 
public  policy.     Greenwood  v.  Curtis,  6  Mass   358  ;  Forepaugh  v. 


SEC.  l!?.]  BASCOM   V.    SMITH.  39 

Delaware,  Lackawanna  &  Western  Railroad,  128  Penn,  St.  217, 
and  cases  cited.     In  re  Missouri  Steamship  Co.  42   Ch.  D.  321, 
326,  327  ;  Liverpool  &  Great  Western  Steam  Co.  v.  Phenix  Ins. 
Co.  129  U.  S.  397. 
'     Judgment  for  the  defendant. 


H.  CLAY   BASCOM  v.  J.   HEBER   SMITH. 

In    the    Supreme   Judicial    Court    of   Massachusetts,  June 

21,  1895. 

{^Reported  in  164  Massachusetts  Reports  61.] 

Contract  on  a  guaranty.  Trial  in  the  Superior  Court,  before 
Dunbar,  J.,  who  allowed  a  bill  of  exceptions,  in  substance  as 
follows : 

In  1890  certain  persons  undertook  the  reorganization  and 
capitalization  of  the  Economo  Duplex  Stove  Company,  a  cor- 
poration formed  for  the  purpose  of  manufacturing  stoves  and 
ranges,  with  a  view  to  manufacturing  a  more  satisfactory  range 
than  the  company  had  theretofore  produced. 

In  pursuance  of  this  plan  the  treasurer  of  the  company,  A.  J. 
Webb,  on  August  8th,  1890,  wrote  to  the  plaintiff,  who  was  a 
manufacturer  of  stove  patterns  in  Troy,  N.  Y.,  enclosing  specifi- 
cations for  a  new  range,  and  asking  for  an  estimate  of  the  cost 
of  patterns.  In  this  letter  he  said  :  "  We  have  some  money  on 
hand  that  would  enable  us  to  go  part  way,  at  least,  with  a  set 
of  patterns,  and  I  think  we  can  get  support  that  will  enable  us 
to  complete  them."  To  this  letter  the  plaintiff  replied,  on 
August  4th,  estimating  the  cost  of  wooden  patterns  of  the  pro- 
posed new  range  at  from  six  to  eight  hundred  dollars,  and  sug- 
gesting a  personal  interview. 

In  September  of  that  year  there  was  an  informal  meeting  of 
the  officers  and  stockholders  of  the  company,  at  which  the  de- 
fendant was  present,  and  the  plans  of  reorganization  and  the 
preparation  of  new  patterns  were  then  considered. 

The  treasurer  of  the  company  testified  that  at  this  meeting  a 
proposition  was  made  by  some  one  present  to  be  one  of  several 
to  advance  a  sum  sufficient  to  order  a  complete  set  of  wooden 
and  iron  patterns,  and  the  president  of  the  company,  Walter  H. 
Homans,  testified  that  the  defendant  said  he  had  a  friend  who 
intended  to  buy  a  thousand  dollars'  worth  of  stock,  and  that 
he,  the  defendant,  would  pledge  himself  $500  on  this  set  of  pat- 
terns   if  necessary  ;    that   after  the   informal   meeting   the    de- 


40 


BASCOM   V.    SMITH.  [cHAP.  I. 


fendant  withdrew,  and  a  meeting  of  the  directors  was  held,  at 
which,  in  reliance  upon  the  defendants'  guaranty  of  a  sum  to 
pay  for  the  patterns,  it  was  voted  to  send  Webb  to  Troy  to 
order  them. 

On  the  day  following  the  meeting,  the  vote  of  the  directors 
was  brought  to  the  attention  of  the  defendant  by  Homans,  who 
then,  or  later,  obtained  from  him,  out  of  the  proceeds  of  the 
sale  of  certain  shares  of  stock  of  the  company  held  by  him  in 
trust,  a  sum  of  money  to  defray  the  expenses  of  Webb's  journey 
to  Troy,  the  purpose  of  which  was  understood  by  the  defendant. 
On  cross-examination,  Homans  testified  that  he  did  not  under- 
stand that  the  order  was  to  include  wood  and  iron  patterns  ; 
that  nothing  was  said  about  wooden  patterns,  but  it  was  under- 
stood simply  that  Webb  was  to  go  to  Troy  and  order  patterns, 
which,  it  was  supposed  by  the  witness,  would  be  a  complete  set. 

Thereafter  Webb  went  to  Troy,  and  ordered  of  the  plaintiff  a 
set  of  wooden  patterns  in  case  the  cost  did  not  exceed  $500,  and 
at  the  same  time  represented  that  the  defendant,  who  was  finan- 
cially reliable,  was  to  be  the  responsible  party,  and  he  suggested 
that  the  plaintiff  write  to  the  defendant  to  obtain  a  corrobora- 
tion of  his  representations.  The  plaintiff,  therefore,  on  October 
7th,  1890,  wrote  to  the  defendant  : 

"  In  minuting  the  preliminary  details  for  a  new  set  of  range 
patterns  for  the  Duplex  Range  Co.,  Mr.  Webb  mentions  your 
willingness  to,  in  some  way,  become  responsible  for  work  to  the 
amount  of  $500,  and  suggests  that  you  will  doubtless  drop  me 
a  note  to  that  effect.  Our  transactions  with  Mr.  Webb  have  so 
indorsed  his  unchallenged  integrity  that  I  regard  this  letter  as 
superfluous,  but  I  write  in  harmony  with  his  suggestion,  and 
we  hope  to  get  up  a  real  marketable  construction." 

On  October  8th  the  defendant  replied  : 

"  Your  esteemed  favor  of  the  7th  inst.  just  received.  I  feel 
sure  that  your  confidence  in  Mr.  Webb  is  well  placed,  but  I 
hereby  signify  my  willingness  and  intention  to  become  responsi- 
ble for  the  work  of  the  new  pattern,  size  No.  7,  of  the  Duplex 
Stove  Company  to  the  amount  of  $500,  in  the  event  of  any  such 
action  on  my  part  becoming  necessary  for  any  cause." 

The  plaintiff  testified  that  Webb  ordered  a  set  of  wooden  pat- 
terns ;  and  stated  to  him  that  the  sole  condition  upon  which  the 
order  was  given  was  that  the  defendant  had  guaranteed  the  ex- 
pense to  the  amount  of  $500,  and  that  the  execution  of  the  order 
was  left  contingent  upon  the  defendant's  confirmation  of  his 
statement  ;  that  the  witness  wrote  to  the  defendant  at  Webb's 
suggestion,  and  relied  on  the  defendant's  assurance  contained 
in  his  letter  of  October  8th. 


SEC.  ll>.]  BASCOM    V.    SMITH.  41 

There  was  evidence  that  the  plaintiff  made  a  set  of  wooden 
patterns  as  ordered  by  Webb,  in  accordance  with  the  specifica- 
tions, at  a  cost  of  $500,  for  which  he  had  not  received  payment. 

About  October  15th,  1890,  Webb  sent  to  the  defendant  the 
specifications  for  the  patterns,  and,  later,  a  letter  of  the  plaintiff 
to  him  dated  October  nth,  in  which  the  plaintiff  said  :  "  Unless 
more  work  than  we  can  foresee  is  required,  we  shall  be  able  to 
produce  the  wood  patterns,  cast  the  iron  patterns,  file,  joint, 
wax,  and  followboard  complete  for  less  than  $900." 

Webb  further  testified,  for  the  plaintiff,  that  after  his  return 
from  Troy  he  called  on  the  defendant,  with  whom  he  talked 
over  the  whole  matter,  and  that  thereafter  he  kept  him  informed 
of  what  was  going  on  ;  that  about  October  8th  the  defendant 
asked  him  whether  the  plaintiff  had  sent  his  bill,  and  if  he  had 
not,  the  defendant  requested  the  witness  to  ascertain  when  he 
would  send  it,  which  the  witness  did  ;  that  at  one  of  his  inter- 
views with  the  defendant  the  latter  made  a  statement  signifying 
that  he  expected  to  pay  the  bill  when  it  came  ;  not  in  terms, 
but  in  a  remark  to  the  effect  that  he  would  settle  the  bill  if  he 
had  to  sell  a  dog,  or  something  of  that  sort. 

There  was  evidence  tending  to  show  that,  while  the  proposed 
reorganization  was  under  consideration,  and  until  after  demand 
made  for  payment  of  the  bill  on  February  17th,  1891,  Homans 
was  in  almost  daily  communication  with  the  defendant,  and 
both  Webb  and  Homans  testified  that  they  had  never  heard  any 
suggestions  from  him  that  he  expected  anything  other  than  a 
set  of  wooden  patterns  to  be  made. 

The  defendant  testified  that,  at  the  informal  meeting,  in  re- 
sponse to  a  request  of  the  president  of  the  company  for  a  state- 
ment of  his  views,  he  said  that  he  was  certain  of  having  $500 
paid  to  him  by  a  friend  for  new  stock  of  the  company  as  soon 
as  it  was  reorganized,  but  that  he  made  no  guaranty  of  any 
accounts  to  be  opened  by  the  company  for  new  range  or  pat- 
terns, or  any  other  statement  in  regard  to  guaranteeing  as  a 
basis  for  the  action  of  the  company,  except  the  expression  of 
his  hope  of  selling  the  new  stock  ;  that  although  he  was  a  share- 
holder, he  was  not  an  officer  of  the  company  ;  that  in  1890  he 
was  authorized  by  the  company  to  attempt  its  capitalization, 
and  to  sell  stock  on  commission  ;  that  the  proceeds  of  one  of 
such  sales  were,  at  the  request  of  Homans,  held  by  the  witness 
in  trust  for  the  uses  of  the  company,  out  of  which  from  time  to 
time  he  paid  to  Homans  certain  sums,  including  the  $25  used 
by  Webb  for  his  expenses  to  Troy. 

On  October  28th,  1890,  the  defendant  wrote  to  Homans  : 

"  I  am  feeling  much  more  hopeful  of  our  success  ultimately. 


42  BASCOM    V.    SMITH.  [CHAP.  L 

Mr.  Chase  called  on  me,  and  we  had  a  pleasant  chat  for  two 
hours  last  Friday.  I  guaranteed  his  stock,  and  should  Mr. 
Bascom  demand  payment  in  advance  of  our  reorganization  and 
replenishment  of  the  treasury  by  the  raising  of  the  $25,000,  I 
shall  now  meet  him  as  promptly  as  possible.  I  hope,  however, 
that  we  shall  be  ready  for  his  entire  bill  in  January,  thereby 
saving  me  any  loss  through  the  guarantee  of  Mr.  Chase's  stock. 
I  am  hopeful  that  Mr.  Chase  will  release  me  from  this  obliga- 
tion of  personal  guarantee  as  soon  as  we  are  reorganized  and 
the  nsoney  put  into  the  treasury,  as  promised  by  Mr.  Houghton." 

The  defendant,  in  explanation  of  this  letter,  testified  that  he 
had  arranged  to  sell  to  one  Chase  five  hundred  dollars'  worth  of 
stock  in  the  company,  with  the  agreement  that  he,  the  defend- 
ant, would  see  that  Chase  suffered  no  loss  thereby,  and  would 
make  good  the  five  hundred  dollars'  worth  of  stock  unless 
Chase  received  it  in  some  other  way,  and  that  the  previous  sug- 
gestions made  by  him  with  regard  to  furnishing  money  to  the 
company  for  the  purpose  of  getting  patterns  were  based  on  this 
sale  of  stock  to  Chase,  from  which  only  he  expected  co  get  the 
money.  On  cross-examination  he  testified  that  his  holding  out 
tlie  prospect  of  his  being  able  to  pay  $500  was  based  upon  his  cer- 
tainty of  deriving  that  amount  from  Mr.  Chase  for  the  sale  of 
the  new  stock  under  the  reorganization  ;  that  he  was  promising 
this  as  treasurer  ;  that  he  already  held  $290  ;  that  he  was  not 
actually  treasurer  of  the  company,  but  a  trustee,  and  expecting, 
upon  the  reorganization,  to  become  treasurer. 

On  February  17th,  1891,  payment  was  demanded  of  the  de- 
fendant by  letter. 

The  defendant  contended  that  the  contract  between  the  plain- 
tiff and  the  corporation,  being  a  contract  for  wooden  patterns 
alone,  was  not  such  a  contract  as  was  contemplated  or  intended 
either  by  the  company  or  by  himself  ;  that  it  was  not  the  con- 
tract which  he  understood  was  to  be  made,  and  was  a  contract 
so  materially  at  variance  with  what  the  parties  intended  as  not 
fairly  to  come  within  the  terms  of  the  guaranty,  and  that  there- 
fore he  could  not  be  bound. 

At  the  close  of  the  testimony  the  defendant  requested  the 
judge  to  rule  that  the  evidence  was  insufficient  to  warrant  a 
verdict  for  the  plaintiff  ;  but  the  judge  declined  so  to  rule,  and 
the  defendant  excepted. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defend- 
ant alleged  exceptions.' 

W.  O.  Kyle  for  the  defendant. 

H.  E.   Warner  for  the  plaintiff. 

'  A  portion  of  the  statement  of  facts  has  been  omitted.— Ed. 


SEC.  1^.]  BASCOM   V.    SMITH.  43 

Field,  C.  J.  The  Court  undertook  to  construe  the  contract 
declared  on  with  reference  to  all  the  circumstances  which  the 
evidence  tended  to  establish  as  existing  when  it  was  made,  and 
merely  left  it  to  the  jury  to  determine  whether  the  circumstances 
assumed  had  been  established  by  the  evidence.  This  is  not 
leaving  the  whole  construction  of  a  written  contract  to  the  jury  ; 
and  the  jury,  by  their  verdict,  have  found  that  the  circumstances 
were  as  they  were  assumed  to  be,  and  have  construed  the  con- 
tract in  the  same  manner  as  the  court. 

The  principle  of  construing  a  writing  most  strongly  against 
the  party  who  wrote  it,  and  proffered  it,  when  it  is  reasonably 
capable  of  two  constructions,  and  has  been  honestly  understood 
and  acted  upon  by  the  other  party  according  to  the  construction 
which  is  most  against  the  interest  of  the  party  proffering  it,  was 
announced  in  the  charge  of  the  presiding  justice,  not  as  an  in- 
struction to  the  jury,  but  as  the  rule  adopted  by  the  Court.  It 
is  a  rule  which  has  been  adopted  in  certain  cases  of  real  am- 
biguity, although  we  have  some  doubt  whether,  on  the  circum- 
stances shown,  there  was  any  need  of  invoking  it  in  the  present 
case.     Barney  v.  Newcomb,  9  Cush.  46. 

Assuming  that  the  defendant  knew  that  Webb,  in  behalf  of 
the  Economo  Duplex  Stove  Company,  had  requested  the  plain- 
tiff to  make  a  new  set  of  range  patterns,  of  which  there  is  no 
doubt,  the  letters  of  October  7th  and  October  8th,  1890,  become 
intelligible  enough.  The  plaintiff  in  his  letter  to  the  defendant 
of  October  7th,  1890,  indicates  that  he  wishes  to  have  a  note  in 
writing  from  the  defendant  confirming  what  Webb  had  said — 
namely,  that  the  defendant  would  become  responsible  to  the 
plaintiff  for  work  on  the  new  set  of  patterns  ordered  of  the 
plaintiff  to  the  amount  of  $500,  although  the  plaintiff  politely 
says  that  he  has  such  confidence  in  Webb's  integrity  that  he 
regards  a  letter  from  the  defendant  as  superfluous.  The  de- 
fendant, in  his  letter  in  reply,  signifies  in  writing  his  present 
willingness  and  intention  to  become  responsible  to  the  plaintiff 
for  work  on  such  new  set  of  patterns  to  the  amount  of  $500. 
The  whole  letter  of  the  defendant  shows  that  he  expected  that 
the  plaintiff  would  go  on  and  make  a  new  set  of  patterns  as 
ordered  by  Webb,  and  the  evidence  shows  that  he  knew  that 
the  plaintiff  did  go  on  and  make  the  patterns.  There  was  evi- 
dence that  the  defendant  understood  that  the  plaintiff  in  doing 
so  was  relying  upon  his  agreement  to  become  responsible  to  the 
amount  of  $500,  and  the  jury  must  have  so  found.  Upon  such 
a  finding  no  special  notice  of  the  acceptance  of  the  guaranty  or 
of  the  offer  of  guaranty  was  necessary.  Knowledge  was  equiva- 
lent to  notice.     Bishop  v.  Eaton,  161  Mass.  496. 


44  BASCOM   V.    SMITH.  [cHAP;  I. 

In  view  of  the  facts  which  the  Court  assumed  in  its  hypotheti- 
cal construction  of  the  contract,  which  facts  the  jury  must  have 
found,  the  construction  which  the  Court  gave  to  the  clause, 
"  in  the  event  of  any  such  action  on  my  part  becoming  neces- 
sary for  any  cause,"  seems  to  be  the  only  reasonable  one.  It 
meant  that  if,  for  any  cause,  the  company  should  be  unable  to 
pay  for  the  new  patterns,  and  it  becomes  necessary  for  the  de- 
fendant to  pay,  he  would  pay  for  them  up  to  the  amount  of 

$500- 

The  defendant  contends  that  he  is  not  bound,  because  it  is 

said  that  he  understood  that  the  contract  between  the  plaintiff 

and  the  company  was,  or  was  to  be,  for  a  set  of  patterns  of 

wood  and  another  set  of  iron,  whereas  the  order  actually  given 

by  Webb  was  for  a  set  of  wooden  patterns,  and  the  plaintiff 

made  only  a  set  of  wooden  patterns,  in  conformity  to  the  order. 

Upon  this  point  the  instructions  of  the  Court  were  as  follows  : 
"  There  is  another  matter  to  which  I  ought  to  refer,  and  that  is 
the  claim  of  the  defendant  that  there  was  no  guaranty  of  this  con- 
tract, because  he  did  not  understand  that  the  contract  between 
the  company  and  the  plaintiff  was  a  contract  to  make  wooden 
patterns  alone,  but  that  he  understood  that  the  contract  was  to 
make  a  complete  set  of  patterns,  wood  and  iron  both  ;  and  that 
inasmuch  as  he  understood  it  that  way,  that  was  the  contract, 
and  not  the  contract  to  make  a  set  of  wooden  patterns  alone  ; 
and  he  agreed  to  guarantee  a  contract  which,  it  appears  upon 
the  plaintiff's  own  showing  now,  was  not  the  contract  which  he 
understood  he  was  guaranteeing,  that  therefore  he  is  not  bound. 
The  claim  is  not  correct.  If  a  man  undertakes  to  guarantee  a 
contract  which  he  may  know  the  terms  of  upon  inquiry,  and  he 
makes  no  effort  to  find  out  what  the  terms  are,  but  guarantees 
it,  says,  '  I  will  guarantee  that  contract,'  and  nobody  misleads 
him  about  it,  and  he  has  an  opportunity  to  know  what  it  is  if 
he  sees  fit,  but  does  not  take  pains  to  find  out,  but  guarantees 
it  without  knowing,  he  is  found.  Now,  whether  that  applies  in 
this  case  you  will  determine  upon  the  evidence." 

We  think  that  the  instructions  were  correct.  The  meaning 
of  the  letters,  construed  with  reference  to  the  circumstances 
which  the  jury  must  have  found,  is  that  the  defendant  is  to 
become  responsible  to  the  amount  of  $500  for  the  work  done  by 
the  plaintiff  upon  the  new  set  of  patterns,  size  No.  7,  of  the 
Economo  Duplex  Stove  Company,  which  Webb,  acting  in  behalf 
of  the  company,  had  ordered  the  plaintiff  to  make.  There  is 
nothing  in  the  letters  indicating  whether  the  new  patterns  were 
to  be  of  wood  or  of  iron,  or  whether  there  were  to  be  two  sets  of 
patterns,  one  of  wood  and  the  other  of  iron,  and  the  defendant 


SEC.  ic]  FITCH    AND   JONES   V.    SNEDAKER.  45 

guarantees  payment  to  the  amount  of  $500  for  the  work  to  be 
done  by  the  plaintiff  on  the  patterns,  size  No.  7,  of  the  Economo 
Duplex  Stove  Company  which  Webb  had  ordered.  As  Webb 
ordered  only  wooden  patterns  to  be  made,  the  defendant  guar- 
■  anteed  payment  for  the  patterns  so  ordered  to  the  amount  of 
$500. 

Exceptions  overruled. 


(r)  Necessity  of  conwiunicatio^i  of  offer  aiid  acceptance. 

ABRAM    FITCH    and    PROSSER    JONES,    Appellants,    v. 
ADRASTUS    SNEDAKER,   Respondent. 

In  the  Court  of  Appeals  of  New  York,  June,  1868, 
[Reported  hi  3S  A'^eiv  York  Reports  24S.] 

Woodruff,  J.  On  October  14th,  1859,  the  defendant  caused 
a  notice  to  be  published,  offering  a  reward  of  $200  .  .  .  "to 
any  person  or  persons  who  will  give  such  information  as  shall 
lead  to  the  apprehension  and  conviction  of  the  person  or  persons 
guilty  of  the  murder  of"  a  certain  unknown  female. 

On  October  15th,  before  the  plaintiffs  had  seen  or  heard  of 
the  offer  of  this  reward,  one  Fee  was  arrested  and  put  in  jail, 
and  though  not  in  terms  so  stated,  the  case  warrants  the  infer- 
ence, that,  by  means  of  the  evidence  given  by  the  plaintiffs  on 
his  trial  and  their  efforts  to  procure  testimony.  Fee  was  con- 
victed. 

This  action  is  brought  to  recover  the  reward  so  offered.  On 
the  trial  the  plaintiffs  proved  the  publication  of  the  notice,  and 
then  proposed  to  prove  that  they  gave  information  before  the 
notice  was  known  to  them,  which  led  to  the  arrest  of  Fee.  This 
evidence  was  excluded.  The  plaintiffs  then  offered  to  prove 
that,  with  a  view  to  this  reward,  they  spent  time  and  money, 
made  disclosures  to  the  District  Attorney,  to  the  Grand  Jury, 
and  to  the  Court  on  the  trial  after  Fee  was  in  jail,  and  that, 
without  their  effort,  evidence,  and  exertion,  no  indictment  or 
conviction  could  have  been  had.     This  evidence  was  excluded. 

The  Court  thereupon  directed  a  nonsuit. 

It  is  entirely  clear  that,  in  order  to  entitle  any  person  to  the 
reward  offered  in  this  case,  he  must  give  such  information  as 
shall  lead  to  both  apprehension  and  conviction — that  is,  both 
must  happen,  and  happen  as  a  consequence  of  the  information 
given.  No  person  could  claim  the  reward  whose  information 
caused  the  apprehension,   until  conviction  followed  ;  both  are 


46  FITCH   AND   JONES   V.    SNEDAKER.  [CHAP.  I. 

conditions  precedent.  No  one  could  therefore  claim  the  reward 
who  gave  no  information  whatever  until  after  the  apprehension, 
although  the  information  he  afterward  gave  was  the  evidence 
upon  which  conviction  was  had,  and  however  clear  that,  had 
the  information  been  concealed  or  suppressed,  there  could  have 
been  no  conviction.  This  is  according  to  the  plain  terms  of  the 
offer  of  the  reward,  and  is  held  in  Jones  v.  The  Phoenix 
Bank    (8   N.   Y.    228)  ;    Thatcher  v.    England   (3   Com.    Bench, 

254). 

In  the  last  case  it  was  distinctly  held,  that,  under  an  offer  of 
reward,  payable  "  on  recovery  of  property  stolen  and  con- 
viction of  the  offender,"  a  person  who  was  active  in  arresting 
the  thief  and  finding  and  restoring  part  of  the  stolen  property, 
giving  information  to  the  magistrates,  tracing  to  London  other 
of  the  property,  and  producing  pawnbrokers  with  whom  the 
prisoner  had  pledged  it,  and  who  incurred  much  trouble  and 
expense  in  bringing  together  witnesses  for  the  prosecution,  was 
not  entitled  to  the  reward,  as  it  appeared  that  another  person 
gave  the  first  information  as  to  the  party  committing  the 
robbery. 

In  the  present  case,  the  plaintift',  after  the  advertisement  of 
the  defendant's  offer  of  a  reward  came  to  his  knowledge,  did 
nothing  toward  procuring  the  arrest,  nor  which  led  thereto,  for 
at  that  time  Fee  had  already  been  arrested. 

The  cases  above  referred  to,  therefore,  establish,  that,  if  no 
information  came  from  the  plaintiffs  which  led  to  the  arrest  of 
Fee,  the  plaintiffs  are  not  entitled  to  recover,  however  much  the 
information  they  subsequently  gave,  and  the  efforts  they  made 
to  procure  evidence,  may  have  contributed  to  or  even  have 
caused  his  conviction,  and,  therefore,  evidence  that  it  was  their 
efforts  and  information  which  led  to  his  conviction  was  wholly 
immaterial,  if  they  did  not  prove  that  they  had  given  informa- 
tion which  led  to  his  apprehension,  and  was  properly  rejected. 

The  question  in  this  case  is  simple.  A  murderer  having  been 
arrested  and  imprisoned  in  consequence  of  information  given 
by  plaintiff  before  he  is  aware  that  a  reward  is  offered  for  such 
apprehension,  is  he  entitled  to  claim  the  reward  in  case  convic- 
tion follows  ? 

The  ruling  on  the  trial,  excluding  all  evidence  of  information 
given  by  the  plaintiffs  before  they  heard  of  this  reward,  neces- 
sarily answers  this  question  in  the  negative. 

The  case  of  Williams  v.  Carwardine  (4  Barn.  &  Aid.  621,  and 
same  case  at  the  assizes,  5  Carr.  &  Payne,  566)  holds  that  a  per- 
son who  gives  information  according  to  the  terms  of  an  offered 
reward  is  entitled  to  the  money,  although  it  distinctly  appeared 


SEC.  ic]  FITCH    AND    JONES    V.    SNEDAKER.  4/ 

that  the  informer  had  suppressed  the  information  for  five 
months,  and  was  led  to  inform,  not  by  the  promised  reward, 
but  by  other  motives.  The  Court  said  the  plaintiff  had  proved 
performance  of  the  condition  upon  which  the  money  was  pay- 
■able,  and  that  established  her  title.  That  the  Court  would  not 
look  into  her  motives.  It  does  not  appear  by  the  reports  of  this 
case  whether  or  not  the  plaintiff  had  ever  seen  the  notice  or 
handbill  posted  by  the  defendant  offering  the  reward,  it  does 
not,  therefore,  reach  the  precise  point  involved  in  the  present 
appeal. 

I  perceive,  however,  no  reason  for  applying  to  an  offer  of 
reward  for  the  apprehension  of  a  criminal,  any  other  rules  than 
are  applicable  to  any  other  offer  by  one,  accepted  or  acted  upon 
by  another,  and  so  relied  upon  as  constituting  a  contract. 

The  form  of  action  in  all  such  cases  is  assumpsit.  The  defend- 
ant is  proceeded  against  as  upon  his  contract  to  pay,  and  the 
first  question  is,  Was  there  a  contract  between  the  parties  ? 

To  the  existence  of  a  contract  there  must  be  mutual  assent, 
or  in  another  form  offer  and  consent  to  the  offer.  The  motive 
inducing  consent  may  be  immaterial,  but  the  consent  is  vital. 
Without  that  there  is  no  contract.  How,  then,  can  there  be 
consent  or  assent  to  that  of  which  the  party  has  never  heard  ? 
On  October  15th,  1859,  the  murderer.  Fee,  had,  in  consequence 
of  information  given  by  the  plaintiffs,  been  apprehended  and 
lodged  in  jail.  But  the  plaintiffs  did  not,  in  giving  that  infor- 
mation, manifest  any  assent  to  the  defendant's  offer,  nor  act  in 
any  sense  in  reliance  thereon,  they  did  not  know  of  its  exist- 
ence. The  information  was  voluntary,  and  in  every  sense 
(material  to  this  case)  gratuitous.  The  offer  could  only  operate 
upon  the  plaintiffs  after  they  heard  of  it.  It  was  prospective  to 
those  who  will,  in  the  future,  give  information,  etc. 

An  offer  cannot  become  a  contract  unless  acted  upon  or 
assented  to. 

Such  is  the  elementary  rule  in  defining  what  is  essential  to 
a  contract.  (Chitty  on  Con.,  5th  Am.  ed.,  Perkin's  notes,  p.  10, 
9  and  2,  and  cases  cited.)  Nothing  was  here  done  to  procure 
or  lead  to  Fee's  apprehension  in  view  of  this  reward.  Indeed, 
if  we  were  at  liberty  to  look  at  the  evidence  on  the  first  trial,  it 
would  appear  that  Fee  was  arrested  before  the  defendant  offered 
the  reward. 

I  think  the  evidence  was  properly  excluded,  and  the  nonsuit 
necessarily  followed. 

The  judgment  should  be  affirmed. 

Judgment  affirmed." 

'  The  opinion  of  Gierke,  J.,  has  been  omitted. — Ed. 


48  MAYOR  Ct  al.    OF   HOBOKEN   V.    BAILEY.       [cHAP.  I. 


THE  MAYOR  and  COMMON   COUNCIL  OF   HOBOKEN. 

Plaintiffs  in  Error,  v.  GEORGE  W.  BAILEY, 

Defendant  in  Error. 

In    the    Court    of    Errors,   and    Appeals    of    New    Jersey, 
March  Term,  1873. 

[Reported  in  36  New  Jersey  Law  Reports  490.  J 

Depue,  J.'  The  action  is  for  the  recovery  of  the  bounty  of 
$350,  under  the  resolution  above  set  out.  The  judge  charged 
the  jury,  pro  forma,  to  find  a  verdict  for  the  plaintiff,  for  the 
amount  of  the  scrip,  with  interest  from  the  time  it  was  de- 
manded by  Hatfield,  without  leaving  any  question  of  fact  for 
their  determination.  To  sustain  an  exception  to  this  charge, 
the  plaintiffs  in  error  assign,  among  other  reasons,  as  a  ground 
of  reversal,  that  there  was  no  evidence  of  any  contract  by  the 
city  to  pay  the  plaintiff  the  bounty,  or  of  any  consideration  to 
support  a  recovery.  The  argument  was,  that  an  offer  of  a 
bounty  for  enlistments  is  a  proposal  which  does  not  become  a 
contract  until  acceptance,  and  that  no  recovery  can  be  had  un- 
less it  appears  that  the  plaintiff  was  influenced  to  volunteer  by 
the  offer,  or  at  least  had  knowledge  that  a  bounty  was  offered 
by  the  defendants,  before  he  volunteered,  so  that  it  might  be 
inferred  that  such  offer  had  influenced  his  action. 

There  was  no  direct  evidence  that  the  plaintiff  knew  that  any 
bounty  was  offered  by  the  city.  The  proof  was  circumstantial, 
and  by  no  means  conclusive.  In  this  respect  this  case  differs 
from  Hawthorne  v.  Hoboken,  6  Vroom,  247.  If  it  be  essential 
to  the  maintenance  of  the  suit,  that  it  should  appear  that  the 
action  of  the  volunteer  in  enlisting  to  the  credit  of  the  city,  was 
prompted  by  the  expectation  of  receiving  the  bounty  offered  by 
the  resolution,  there  was  a  question  of  fact  for  the  jury  ;  and  it 
was  error  in  the  charge  to  instruct  the  jury  that  the  plaintiff 
was  entitled  to  a  verdict. 

The  city  was  under  no  obligation  to  answer  the  demand  which 
had  been  made  under  the  conscription  law  upon  its  citizens  who 
were  liable  to  draft.  The  act  of  the  legislature,  under  the 
authorit)'  of  which  the  resolution  was  passed,  gave  the  corporate 
authorities  the  power  to  use  the  funds  of  the  city  to  supply  vol- 
unteers, but  did  not  enjoin  it  upon  them  as  a  duty.  The  benefit 
accruing  from  the  relief  of  the  citizens  from  a  draft  was  to  indi- 
viduals.    Whatever  aid  was  extended  by  the  city  toward   the 

'  The  statement  of  facts  has  been  omitted. — Ed. 


SEC.  ic]  MAYOR   Cf  a/.    OF   IIOBOKEN   V.   BAILEY.  49 

accomplishment  of  that  end  was  purely  gratuitous,  as  an  induce- 
ment to  persons  to  come  forward  and  volunteer  to  relieve  indi- 
viduals who  were  by  law  subject  to  the  burden  of  the  draft. 
The  consideration  for  an  undertaking  of  this  kind  is  not  the 
•rendition  of  services  beneficial  to  the  promissor.  In  this  respect 
the  resolution  of  the  common  council  is  analogous  to  the  offer 
of  a  reward  for  the  apprehension  of  the  perpetrator  of  a  crime, 
by  a  person  having  no  interest  in  the  subject-matter  of  the 
offence.  Such  an  offer  enures  as  a  contract  to  any  person  who 
performs  the  stipulated  service,  under  or  at  the  request  of  the 
offer.      Furman  v.  Parke,  i  Zab.  310. 

Upon  what  principle  does  the  right  of  recovery  in  such  cases 
rest  ?  It  cannot  be  maintained,  on  the  proposal  of  a  reward,  or 
bounty,  for  no  contract  will  be  concluded  by  a  mere  offer  ;  nor 
will  it  result  from  the  fact  of  performance,  for  an  interest  in 
the  subject  to  which  the  offer  relates  is  not  essential  to  the 
validity  of  the  contract  where  the  service  is  performed.  The 
foundation  of  the  right  of  action  is  the  contract  concluded 
between  the  parties,  by  the  proposition  by  the  one  side,  and  its 
acceptance  by  the  other,  supported  by  the  consideration  which 
results  from  the  performance  of  the  stipulated  service,  on  the 
faith  of  the  promise  contained  in  the  offer.  Such  are  the  views 
of  the  nature  of  obligations  of  this  kind  expressed  by  Chief 
Justice  Shaw  in  Loring  v.  The  City  of  Boston,  7  Mete.  411,  and 
by  the  Court  of  Appeals  of  New  York  in  Fitch  v.  Snedaker, 
38  N.  Y.  248  ;  Rowland  v.  Lounds,  51  N.  Y.  605.  Substantially 
the  same  idea  is  expressed  by  Mr.  Justice  Randolph  in  Fur- 
man  V.  Parke.  His  language  is  :  "  No  person  is  bound  to  offer 
a  reward  for  the  apprehension  and  conviction  of  a  criminal,  but 
if  he  does  so,  he  tenders  an  agreement  to  the  first  person  who 
complies  with  its  terms,  and  he  cannot  then  withdraw  his  offer  ; 
he  has  held  out  inducements  on  which  the  party  has  acted,  and 
he  has  no  right  to  withdraw  his  proposition  then." 

In  the  City  Bank  v.  Bangs,  2  Edw.  Ch.  95,  which  was  a  bill 
of  interpleader  to  determine  which  of  several  claimants  was 
entitled  to  a  reward  offered  for  the  recovery  of  property  which 
had  been  stolen,  Vice-Chancellor  McCoun  adopted  as  the  crite- 
rion for  determining  who  was  entitled  to  the  reward,  the  in- 
quiry, "  Who  is  the  person  that  has  acquired  a  knowledge  of 
the  facts  necessary  to  the  detection  or  discovery  of  the  things 
stolen  or  lost,  and  has  imparted  such  knowledge  with  the  intent 
and  for  the  purpose  of  bringing  about  a  recovery  or  restoration 
of  the  property,  taking  upon  himself  the  risk  and  consequences 
of  a  failure,  and  acting  with  a  view  to  the  reward,  if  his  sus- 
picions and  disclosures  are  well  founded  and  successful."     Upon 


50  MAYOR   Ct   al.    OF    IIOBOKEN   V.    BAILEY.        [CHAP.  1. 

this  criterion  the  Vice-Chancellor  rejected  the  claim  of  a  servant 
who  first  communicated  to  her  mistress  circumstances  of  sus- 
picion which  she  had  observed,  upon  which  the  mistress  acted, 
and  which  led  to  the  recovery  of  the  property.  The  reasons 
assigned  for  such  rejection  were,  that  the  conduct  of  the  ser- 
vant showed  that  she  was  not  acting  with  a  view  to  the  reward, 
but  was  indifferent  to  any  result  that  might  follow  from  the 
information  she  gave,  and  was  not  influenced  by  any  hope  or  ex- 
pectation of  the  reward,  in  case  her  suspicions  were  well  founded. 
In  short,  the  rule  laid  down  and  enforced  by  the  Vice-Chancellor 
was,  that  in  order  to  entitle  a  person  to  a  reward,  the  acts  done 
by  way  of  performance  must  be  done  with  a  view  to  the  accept- 
ance and  performance  of  the  contract  tendered  by  the  offer,  in 
the  expectation  of  earning  the  reward  if  the  effort  is  crowned 
with  success. 

The  right  of  action  in  such  cases  being  founded  in  contract, 
for  which  no  precedent  consideration  was  paid,  and  in  which  no 
promisee  is  named,  it  would  follow,  as  a  necessary  result,  that 
in  order  to  complete  the  contract  and  give  it  mutuality,  an 
assent  in  some  way  to  the  terms  of  the  offer  must  be  giveii. 
Fitch  V.  Snedaker,  38  N.  Y.  248  ;  Howland  v.  Lounds,  51  N.  Y. 
605. 

The  case  usually  cited  for  the  position  that  performance  of 
the  condition  on  which  a  reward  is  promised  will  entitle  a  party 
to  recover,  though  he  acted  without  knowledge  of  the  offer,  is 
Williams  v.  Carwardine,  4  B.  &  Ad.  621.  The  jury  found  that 
plaintiff  made  the  disclosure  not  for  the  sake  of  the  reward,  but 
from  a  motive  of  revenge.  The  Court  held  that  she  was  entitled 
to  recover,  and  that  the  motive  which  influenced  her  to  give  the 
information  was  immaterial.  As  the  case  in  banc  is  reported, 
it  does  not  appear  that  the  plaintiff  acted  without  knowledge  of 
the  offer  of  a  reward.  In  the  report  of  the  trial  at  nisi priiis,  it 
is  manifest  from  the  circumstances  in  evidence,  and  the  argu- 
ment of  counsel,  that  the  plaintiff's  knowledge  of  the  handbill 
offering  the  reward  was  not  disputed.  5  C.  &  P.  566.  If  the 
correct  theory  of  the  action  be  the  enforcement  of  a  contract 
arising  from  an  offer,  and  assent  thereto,  as  shown  by  the  fact 
that  the  stipulated  service  is  performed  with  the  knowledge  that 
a  reward  was  promised  for  doing  it,  as  I  think  it  is,  tlie  contract 
having  been  legally  concluded,  in  giving  effect  to  such  contract, 
if  it  was  performed,  the  motive  which  induced  the  party  to 
make  the  contract  or  perform  it  must  always  be  immate- 
rial. 

The  point  under  discussion  is  not  without  adjudication  in  the 


SEC.  u.]  MAYOR   rt  al.    OF   IIOBOKEN   V.    BAILEY.  (,1 

courts  of  sister  States,   whose   decisions,   if  not  authority,   are 
entitled  to  great  respect.' 

With  respect  to  the  proof  there  is  generally  but  little  dilli- 
culty.  Where  the  action  is  for  a  reward  for  the  apprehension 
of  a  criminal,  or  the  restoration  of  lost  property,  it  rarely  hap- 
pens but  that  something  is  done  in  performance  of  the  condi- 
tion, after  the  party  has  knowledge  of  the  offer.  So,  also,  in 
case  of  the  claim  for  a  bounty  for  an  enlistment  to  the  credit  of 
a  particular  locality  where  no  other  bounty  is  offered,  the  noto- 
riety of  the  offer,  and  the  fact  that  no  other  supposable  reason 
can  be  assigned  for  the  credit,  will  afford  a  presumption  of 
knowledge  of  the  offer,  and  of  the  intention  of  the  volunteer  to 
entitle  himself  to  the  bounty  by  complying  with  the  condition 
of  the  offer  which  the  testimony  of  the  volunteer  may  make 
conclusive. 

No  practical  injustice  can  result  from  enforcing  remedies 
in  such  cases  on  the  basis  of  ordinary  contracts.  It  is  not 
necessary  that  the  volunteer  should  have  received  notice  of  the 
terms  proposed,  or  should  have  given  notice  of  acceptance.  It 
is  enough  that  he  had  knowledge  at  his  enlistment  and  credit  of 
the  offer,  and  acted  with  reference  to  it,  and  fulfilled  the  require- 
ments of  the  offer.      Larimer  v.  McLean  Co.,  47  111.  36. 

In  every  case  it  is  a  question  of  fact  whether  the  contract  was 
concluded  by  an  acceptance,  and  is  supported  by  an  iidcquate 
consideration.  It  was  peculiarly  so  in  the  case  now  before  the 
court.  The  facts  proved  did  not  clearly  establish  either  of  tljese 
propositions,  but,  on  the  contrary,  the  circumstances  strongly 
indicated  that  the  plaintiff  volunteered  in  ignorance  of  th*" 
bounty  now  sued  for,  and  was  induced  to  do  so  solely  by  the 
bounty  offered  by  the  county.  The  charge  that  the  plaintiff 
was,  as  a  matter  of  law,  entitled  to  a  verdict  was  erroneous,  and 
the  judgment  should  be  reversed. 

For  reversal — The  Chancellor,  Chief  Justice,  Depue,  Scud- 
DER,  Van  Syckel,  Clement,  Dodd,  Green,  Lathrop,  Wales 
— 10. 

For  affirmance — Dalrimple — i. 

'  The  citation  of  cases  has  been  omitted,  and  only  so  much  of  the  opinion 
is  given  as  relates  to  the  question  of  assent. — Ed. 


52  TINN  V.   HOFFMANN  &  CO.  [cHAP.  L 

TINN  j^.  HOFFMANN  &  CO. 

In  the  Exchequer  Chamber,  May  14,  15,  1873. 

[Reported  in  29  Z^w  Times  Reports,  New  Series,  271.] 

This  was  an  action  brought  by  the  plaintiff  against  the  de- 
fendants to  recover  damages  in  respect  of  a  breach  of  contract 
to  deliver  800  tons  of  iron  ;  and  by  the  consent  of  the  parties, 
and  by  order  of  Martin,  B.,  dated  May  30th,  1872,  the  facts 
were  stated  for  the  opinion  of  the  Court  of  Exchequer  in  the 
following 

Special  Case. 

1.  The  plaintiff,  Mr,  Joseph  Tinn,  is  an  iron  manufacturer, 
carrying  on  business  at  the  Ashton  Row  Rolling  Mills,  near 
Bristol  ;  and  the  defendant,  who  trades  under  the  name  and 
style  of  Hoffman  &  Co.,  is  an  iron  merchant,  carrying  on  busi- 
ness at  Middlesboro'-on-Tees. 

2.  In  the  months  of  November  and  December,  1871,  the  fol- 
lowing correspondence  passed  between  the  plaintiff  and  the  de- 
fendant relating  to  the  proposed  purchase  and  sale  of  certain 
iron,  the  particulars  of  which  fully  appear  in  the  letters  herein- 
after set  forth  : 

The  plaintiff  to  the  defendant  : 

"  November  22,  1871. 
*'  Messrs.  Hoffman  &  Co.: 

"  Dear  Sirs  :  Please  <\ViO\.^  your  lowest  price  for  800  to7is  No.  4 
Cleveland,  or  other  equally  good  brand,  delivered  at  Portishead 
at  the  rate  of  200  tons  per  month,  March,  April,  May,  and  June, 
1872.     Payment  by  four  months'  acceptance. 

'*  Yours  truly, 

"J.  TiNN." 

3.  The  defendants'  reph^ : 

"  Royal  Exchange  Buildings,  Middlesbro'-on-Tees, 

November  24,  1871. 
"  Joseph  Tinn,  Esq.,  Bristol : 

"  Dear  Sir  :  We  are  obliged  by  your  inquiry  of  the  22d  inst., 
and  by  the  present  beg  to  offer  you  800  tons  No.  4  forge  Mid- 
dlesbro'  pig  iron  (brand  at  our  option,  Cleveland  if  possible), 
at  69^.  per  ton   delivered   at  Portishead,   delivery   200  tons  per 


SEC.  k-.J  TINX   Z'.    HOFFMANN   &   CO.  53 

month,  March,   April,   Ma}-,   and  June,    1872,   payment  by  your 
four  months'  acceptance  from  date  of  arrival. 

"  We  shall  be  very  glad  if  this  low  offer  would  induce  you  to 
favor  us  with  your  order,  and  waiting  your  reply  by  return,  we 
remain,  dear  sir,  yours  truly, 

"  A.  Hoffmann  &  Co." 

4.  The  plaintiff  to  the  defendant  : 

"Bristol,  November  27,  1871. 
"  Messrs.  Hoffman  &  Co.: 

"  Dear  Sirs  :  The  price  you  ask  is  high.  If  I  made  the  quan- 
tity 1200  tons,  delivery  200  tons  per  month  for  the  first  six 
months  of  next  year  I  suppose  you  would  make  the  price  lower  ? 
Your  reply  per  return  will  oblige 

"  J.  TiNN." 

5.  The  defendant  to  the  plaintiff  in  reply  : 

"  Royal  Exchange  Buildings,  Middlesbro'-on-Tees, 

November  28,  1871. 
"  Joseph  Tinn,  Esq.,  Bristol  : 

"  Dear  Sir  :  In  reply  to  your  favor  of  yesterday,  we  beg  to 
state  that  we  are  willing  to  make  you  an  offer  of  further  400 
tons  No.  4  forge  Middlesbro'  pig  iron,  200  tons  in  January,  200 
tons  in  February,  at  the  same  price  we  quoted  you  by  ours  of  the 
24th  inst.,  though  the  rate  of  freight  at  the  above-named  time 
will  doubtless  be  considerably  higher  than  that  of  the  following 
months. 

"  Our  to-day's  market  was  very  firm  again,  and  we  feel 
assured  we  shall  see  a  further  rise  ere  long. 

"  Kindly  let  us  have  your  reply  by  return  of  post  as  to  whether 
you  accept  our  offers  of  together  1200  tons  and  oblige  yours 
truly, 

"  A.  Hoffmann  &  Co." 

6.  The  plaintiff  to  the  defendant  : 

"  Bristol,  November  28,  1871. 
**  Messrs.  Hoffman  &  Co.: 

"  JVo.  4  I'lg  iron. 

"  Dear  Sirs  :  You  can  enter  me  800  tons  on  the  terms  and 
conditions  named  in  your  favor  of  the  24th  inst.,  but  I  trust  you 
will  enter  the  other  400,  making  in  all  1200  tons,  referred  to  in 
my  last,  at  685-.  per  ton.     Yours  faithfulh', 

"  Joseph  Tinn." 


54 


TINN  V.    HOFFMANN   &   CO.  [CHAP. 


7.  The  defendants'  reply  : 

"  Royal  Exchange  Buildings,  Middlesbro'-on-Tees, 

November  29,  1871. 
"  Joseph  Tinn,  Esq.: 

"  Dear  Sir  :  We  are  obliged  by  your  favor  of  yesterday,  in 
reply  to  which  we  are  sorry  to  state  that  we  are  not  able  to  book 
your  esteemed  order  for  1200  tons  No.  4  forge  at  a  lower  price 
than  that  offered  to  you  hx  us  of  yesterday — viz.,  69.?.,  and  even 
that  offer  we  can  only  leave  you  on  hand  for  reply  by  to-morrow 
before  twelve  o'clock.  Waiting  your  reply,  we  remain,  dear 
sir,  yours  truly, 

"  A.  Hoffmann  &  Co." 

8.  On  December  ist,  1871,  the  plaintiff  sent  a  telegram  to  the 
defendant,  of  which  the  following  is  a  copy  : 

"  From  Tinn,  Ashton. 
"  To  Hoffman  &  Co.,  Middlesbro'-on-Tees. 

"  Book  other  400  tons  pig  iron  for  me,  same  terms  and  condi- 
tions as  before." 

And  on  the  same  day  the  plaintiff  sent  a  letter  to  the  defend- 
ant, of  which  the  following  is  a  copy  : 

"  December  i,  1871. 
*'  Messrs.  Hoffman  &  Co.: 

"  Dear  Sirs  :  I  have  your  favor  of  the  29th  ult.  Please  enter 
the  remaining  400  tons  No.  4  Forge  Pig  at  69^'.  (f.;c-ship  Portis- 
head,  delivery  to  commence  January,  1872,  payment  by  four 
months'  acceptance  against  delivery.  Kindly  send  me  sold  note 
for  the  800  and  400  tons,  and  oblige,  yours  truly, 

"  J.  Tinn." 

9.  The  following  correspondence  then  took  place  between  the 
plaintiff  and  the  defendants'  clerk,  duly  authorized  in  that 
behalf. 

The  defendants'  clerk  to  the  plaintiff  : 

"  Royal  Exchange  Buildings,  Middlesbro'-on-Tees, 

December  i,  1871. 
•'Joseph  Tinn,  Esq.,  Bristol  : 

"  Dear  Sir  :  We  have  your  telegram  of  this  day,  '  Book  other 
400  tons  Pig  iron,  same  terms  and  conditions  as  before,'  which 
we  note  and  shall  lay  before  our  Mr.  Hoffman  on  his  return 
next  week.     Yours  truly,  for  A.  Hoffman  &  Co., 

"  C.  Jerveland." 


SEC.  1^.]  TINN  V.   HOFFMANN   &  CO.  55 

10.  Memorandum  : 

"  December  2,  1871. 
"  From  A.  Hoffman  &  Co.,  Middlesbro'-on-Tees. 
*'  To  Joseph  Tinn,  Esq.,  Bristol  : 

"  The  contents  of  your  yesterday's  favor  is  noted,  and  we 
shall  lay  same  before  our  principal  on  his  return  next  week." 

11.  The  defendants  to  the  plaintiff  : 

"  The  Queen's  Hotel,  Manchester,  December  4,  1871. 
*'  Joseph  Tinn,  Esq.,  Bristol  : 

"  Dear  Sir  :  I  am  in  receipt  of  telegram  '  Book  other  400 
tons,  same  terms  and  conditions  as  before,'  and  favor  of  ist  inst. 
addressed  to  my  firm,  in  reply  to  which  I  very  much  regret  to 
state  that  I  am  not  able  to  book  the  1200  tons  in  question,  as 
your  reply  to  ours  of  November  28th  and  29th  did  not  reach  us 
within  the  stipulated  time  ;  and  as  I  had  other  offers  for  the 
same  lot,  I  disposed  of  the  latter  previous  to  my  leaving  Mid- 
dlesbro'  and  receiving  your  decision. 

"  Trusting  to  be  more  fortunate  in  future,  I  remain,  dear  sir, 
yours  truly. 


12.  The  plaintiff  to  the  defendant 


A.  Hoffman  &  Co." 


December  5,  1871. 


*'  Messrs.  Hoffman  &  Co.: 

"  Dear  Sirs  :  I  regret  you  cannot  enter  me  the  400  tons  No.  4 
Forge  Pig  on  the  same  terms  as  the  800  tons.  Please  send  me 
sold  note  for  800  tons  per  return.     Yours  truly, 

"  J.  Tinn." 

13.  The  reply  of  the  defendants  : 

"  Royal  Exchange  Buildings,  Middlesbro'-on-Tees, 

December  6,  1871. 
"  Joseph  Tinn,  Esq.,  Bristol  : 

"  Dear  Sir  :  Your  favor  of  yesterday  to  hand,  in  reply  to 
which  we  have  to  state  that  we  cannot  send  you  contract  for  pig 
iron,  having  sold  you  none. 

"  The  quotation  for  1200  tons  in  our  respect  of  29th  ult.  was 
for  your  acceptance  by  12  o'clock  the  30th  ;  and  failing  to  re- 
ceive such  we  disposed  of  the  iron,  being  under  other  offers,  as 
already  intimated  to  you  by  our  Mr.  Hofifman,  and  it  is  now 
utterly  impossible  for  us  to  book  you  the  quantity  you  require, 
or  you  may  rest  assured  that  we  willingly  would  do  so.  We 
are,  dear  sir,  yours  truly, 

"  Pro  A.  Hoffman  &  Co.,  C.  Jerveland." 


56  TINN   v.    HOFFMANN   &   CO.  [cHAP.  I. 

14.  It  is  agreed  that  all  the  facts  and  circumstances  mentioned 
in  the  above  correspondence  are  true,  and  that  the  court  are  to 
have  power  to  draw  all  inferences  of  facts  in  the  same  way  as  a 
jury  might  do. 

15.  The  course  of  post  between  Bristol  and  Middlesbrough  is 
one  day. 

16.  The  plaintiff  contends  that  he  has  a  binding  contract  with 
the  defendant  whereby  the  defendants  are  bound  to  deliver  to 
him  800  tons  of  iron.  The  defendants,  on  the  other  hand,  con- 
tend that  there  is  no  such  contract,  and  refuse  to  deliver  any 
of  the  said  iron. 

The  questions  for  the  opinion  of  the  Court  are,  first,  whether, 
upon  the  facts  stated  and  documents  set  out  in  the  case,  there 
is  any  binding  contract  on  the  part  of  the  defendants  to  deliver 
800  tons  of  iron  to  the  plaintiff  ;  secondly,  whether,  upon  the 
facts  and  documents  set  out  in  the  case,  there  is  any  binding 
contract  on  the  part  of  the  defendants  to  deliver  any  quantity 
of  iron  to  the  plaintiff,  and  if  yea,  what  quantity  and  on  what 
terms  and  conditions. 

If  the  Court  shall  be  of  opinion  in  the  affirmative  on  either  of 
these  questions,  then  it  has  been  agreed  between  the  parties  in 
writing  in  accordance  with  the  provisions  of  the  Common  Law 
Procedure  Act  1852,  that  the  amount  of  damages  for  breach  of 
such  contract  shall  be  ascertained  by  reference  to  an  arbitrator 
to  be  appointed  by  the  said  plaintiff  and  defendants,  or  in  case 
of  difference  by  any  judge  of  one  of  the  superior  Courts  of 
Common  Law,  and  judgment  for  the  amount  entered  up  for  the 
plaintiffs  with  costs  of  suit. 

If  the  Court  shall  be  of  opinion  in  the  negative,  then  judg- 
ment of  7iol.  pros,  with  costs  of  defence  sliall  be  entered  up  for 
the  defendants. 

The  case  came  on  for  argument  in  the  Court  of  Exchequer  in 
Michaelmas  Term  last,  when,  after  hearing  counsel  on  both 
sides,  the  learned  Barons  were  divided  in  opinion,  Bramwell, 
Channell,  and  Pigott,  BB.,  being  of  opinion  that  the  defendants 
were  entitled  to  judgment  on  the  ground  that  there  was  in  the 
correspondence  no  binding  contract  on  the  part  of  the  defend- 
ants to  deliver  800  tons  of  iron  to  the  plaintiff.  The  defend- 
ants' offer  of  November  24th  was  never  accepted  by  the  plain- 
tiff, his  letter  of  the  28th  being  too  late  for  that  purpose.  The 
defendants'  letter  of  the  28th  was  an  offer  of  1200  tons,  and  was 
open  only  until  noon  on  the  30th,  and  was  not  accepted  by  the 
plaintiff  in  time.  The  two  offers  cannot  be  separated.  The 
Lord  Chief  Baron,   on  the  other  hand,  gave  his  judgment  in 


SEC.  U.]  TINN   Z'.    HOFFMANN   &   CO.  57 

favor  of  the  plaintiff,  being  of  opinion  that  the  offers  of  the"  800 
and  400  tons  were  entirely  distinct  and  separate,  and  that  the 
defendants'  letter  of  the  24th  had  been  kept  open  and  their 
offer  therein  of  the  800  tons  was  accepted  by  the  plaintiff  in  his 
letter  of  November  28th,  and  the  defendants  were  thereby 
bound.  The  majority  of  the  Court,  however,  being  of  a  con- 
trary opinion,  judgment  was  entered  for  the  defendants,  where- 
upon the  plaintiff  brought  error  to  this  Court. 

The  plaintiff's  points  for  argument  :  First,  that  there  is  a 
binding  contract  on  the  part  of  the  defendants  to  deliver  to  the 
plaintiff  800  tons  of  iron  ;  secondly,  that  there  is  a  binding  con- 
tract on  the  part  of  the  defendants  to  deliver  to  the  plaintiff 
certain  tons  of  iron  on  the  terms  and  conditions  contained  in 
the  documents  set  out  in  the  special  case  herein. 

The  defendants'  points  for  argument  :  First,  that  there  is  no 
binding  contract  between  the  defendants  and  the  plaintiff,  inas- 
much as  they  were  never  ad  idem  j  secondly,  that  the  defend- 
ants' offer  on  November  24th,  187 1,  to  supply  800  tons,  was 
not  accepted  by  the  plaintiff  in  his  letter  in  answer  thereto  of 
November  27th,  1871  ;  thirdly,  that  the  defendants'  further 
offer  on  November  28th,  1871,  to  supply  1200  tons  was  not 
accepted  by  the  plaintiff  in  his  letter  in  answer  thereto  of  the 
same  day  ;  fourthly,  that  the  defendants'  further  offer  on 
November  29th,  1871,  to  supply  the  said  1200  tons  was  condi- 
tional upon  its  being  accepted  by  12  o'clock  on  November  30th, 
1871,  and  that  the  plaintiff  never  so  accepted  it. 

Kingdon,  Q.C.  (with  him  was  Arthur  Charles)  appeared  to 
argue  the  case  on  the  part  of  the  plaintiff. 

A.  L.  Smith  (with  him  was  H.  Lloyd,  Q.C.)  argued  contra  on 
the  part  of  the  defendants. 

Cur.  adv.  vult. 

May  15. — The  Court  being  divided  in  opinion  the  following 
judgments  were  now  delivered  seriatim  : 

HoNVMAN,  J.  I  am  of  opinion  that  the  judgment  of  the 
Court  below  was  wrong,  and  that  judgment  ought  to  be  entered 
for  the  plaintiff  in  respect  of  800  tons.  The  question  depends 
entirely  on  the  construction  and  effect  of  the  defendant's  letter 
of  the  24th  and  the  two  letters  of  November  28th,  187 1,  one 
written  by  the  plaintiff  and  the  other  by  the  defendants.  The 
plaintiff  had  been  inquiring  at  what  price  the  defendants  would 
let  him  have  800  tons  of  iron,  and  by  their  letter  of  November 
24th  they  named  69^.  per  ton  as  the  price  for  the  800  tons,  to 
be  delivered  at  the  rate  of  200  tons  per  month,  in  the  four 
months  of  March,  April,  May,  and  June,  1872  ;  and  that  letter 
concluded  thus,  "  waiting  your  reply  by  return."     Mr.   King- 


58  TINN   V.    HOFFMANN    &    CO.  [CHAP.  I. 

doh,  on  the  part  of  the  plaintiff,  admitted,  and  I  think  very 
properly,  that  the  meaning  of  that  was,  we  offer  you  that  price, 
provided  you  accept  it  by  return.  Inasmuch  as  it  was  not 
accepted  by  return,  as  it  stood,  I  presume  had  it  stopped  there, 
there  would  have  been  no  contract.  The  plaintiff  not  only  did 
not  accept  by  return,  but,  on  the  contrary,  he  objected  to  the 
price,  for  on  November  27th  he  wrote  saying  that  the  price  was 
too  high,  and  asking  whether  if  he  increased  the  quantity  to 
1200  tons,  to  be  deliverable  200  tons  per  month — that  is  to  say, 
in  addition  to  the  quantity  he  had  already  proposed  for,  to  be 
delivered  in  March,  April,  May,  and  June,  1872,  400  tons  more, 
to  be  delivered  200  tons  in  January  and  200  in  February,  1872, 
that  would  make  the  price  lower.  Upon  that,  on  November 
28th,  the  defendants  wrote  the  following  letter,  on  the  construc- 
tion of  which  I  believe  the  difference  of  opinion  among  the 
members  of  the  Court  mainly  ari:;es.  [Reads  letter  of  that 
date.]  What  is  the  meaning  of  that  letter  ?  It  amounts  to 
this  :  On  November  24th  we  offered  you  800  tons  for  delivery 
at  69^.;  we  now  repeat  to  you  that  offer,  and  in  addition  to  that, 
we  make  a.  further  offer  of  400  tons  more — that  is,  we  renew  the 
offer  of  November  24th,  and  we  make  you  a  further  offer  of  400 
tons,  provided  you  accept  those  offers  "  by  return  of  post." 
That  does  not  mean  exclusively  a  reply  by  letter  by  return  of 
post,  but  you  may  reply  by  telegram  or  by  verbal  message,  or 
by  any  means  not  later  than  a  letter  written  and  sent  by  return 
of  post  would  reach  us.  If  that  is  so,  then  comes  the  plaintiff's 
letter,  written  on  the  same  day,  November  28th,  which  crossed 
the  defendants'  letter  of  the  same  date,  in  which  the  plaintiff 
said,  "  You  can  enter  me  800  tons  on  the  terms  and  conditions 
named  in  your  favor  of  the  24th  inst.,  bui  I  trust  you  will  enter 
the  other  400,  making  in  all  1200  tons,  referred  to  in  my  last, 
at  68.y.  per  ton,  ex  ship  Portishead."  I  cannot  agree  in  the 
opinion  said  to  have  been  expressed  by  my  Brothers  Pigott  and 
Channell  in  the  Court  below.  As  I  understand,  my  Brother 
Pigott  certainly  says  this  is  not  a  clean  offer,  or  a  clean  accept- 
ance, of  800  tons,  but  that  it  is  800  tons  on  the  condition  or 
hope  or  trust  that  they  would  lower  the  price  of  the  other  400 
tons.  I  cannot  accede  to  that  view  of  the  case.  I  assume  that 
it  plainly  amounts  to  this,  "  I  will  take  your  800  tons  on  the 
terms  and  conditions  mentioned  in  the  letter  of  the  24th  inst., 
but  I  hope  you  will  let  me  have  the  other' lot  at  685-.  per  ton;  if 
you  choose  to  do  that,  well  and  good."  I  cannot  understand 
how  it  can  be  said  that  that  is  not  an  absolute  acceptance  of  the 
800  tons,  supposing  it  was  competent  to  the  plaintiff  to  accept 
that  quantity.     In  the  Court  below  it  seems  to  have  been  treated 


SEC.  I^.]  TINN   V.    HOFFMANN   &   CO.  59 

as  if  the  offer  of  November  28th  was  one  offer  of  1200  tons.  I 
do  not  think  so.  I  think  it  is  a  repetition  of  the  offer  of  800 
tons  coupled  with  a  further  offer  of  400  tons,  and  that  it  was 
■competent  to  the  plaintiff  to  accept  one  and  not  accept  the 
other.  My  Brother  Bramwell  appears  to  have  thought  that  it 
was  not  material  to  consider  whether  it  was  two  separate  offers 
■of  400  tons  and  800  tons,  or  an  of?er  of  1200  tons,  because  in 
either  view  of  the  case,  the  plaintiff  could  not  accept  the  one 
and  reject  the  other.  If  it  is  to  be  construed  as  strictly  one 
offer  of  1200  tons,  I  can  understand  it,  and  then  of  course  he 
could  not  accept  the  one  and  reject  the  other.  But  I  do  not 
think  it  is  one  offer  of  1200  tons,  nor  two  offers,  one  of  400,  and 
the  other  of  800  tons,  but  that  it  is  a  repetition  of  the  offer  of  800 
tons,  with  a  further  offer  of  further  400  tons.  To  say  that  he 
could  not  accept  the  400  tons  without  the  800  tons  seems,  in  my 
view  of  the  matter,  to  throw  no  light  on  the  question  whether 
he  might  accept  the  800  tons  without  the  400  tons.  That  being 
so,  it  being  in  my  judgment  a  separate  offer  of  800  tons,  and 
400  tons  in  addition,  I  should  have  thought,  had  the  plaintiff's 
letter  of  the  28th  been  written  on  November  29th  that  nobody, 
but  for  the  opinions  which  have  been  expressed  here  to-day, 
could  have  entertained  a  doubt  that  it  would  have  been  an 
acceptance.  What,  then,  is  the  effect  when  the  two  letters  are 
written  on  the  same  day  and  crossed  each  other  in  the  post  ? 
Does  that  make  any  difference  ?  On  this  part  of  the  case,  as 
far  as  I  can  gather  from  the  notes  that  have  been  given  us  of 
the  judgments  below,  my  Brother  Bramwell  is  of  the  same 
opinion  as  I  am,  because  I  understand  him  to  say  that,  if  he  had 
thought  that  these  were  two  offers,  and  that  the  two  offers  were 
capable  of  being  accepted  the  one  without  the  other,  then  the 
fact  of  the  acceptance  crossing  the  offer  would  have  been  no  bar 
to  the  contract.  After  the  plaintiff  had  written  the  letter  of 
November  28th  mentioning  the  800  tons,  it  could  not  be  said 
that  he  would  not  have  been  bound  by  the  defendant's  letter  of 
the  same  date,  if  it  had  been  written  on  November  29th.  I  do 
not  see  how  it  can  be  contended  that  there  would  not  then  have 
been  a  valid  contract  for  800  tons,  except  with  regard  to  the 
question  of  whether  it  were  one  offer,  or  two  offers.  Of  course, 
if  it  is  one  offer,  that  is  one  thing  ;  but  if  it  be  two  offers,  then, 
if  the  defendants'  letter  of  November  28th  had  been  written  on 
the  29th,  after  he  had  received  the  plaintiff's  letter  of  the  28th, 
it  could  not  be  said  that  that  did  not  make  a  good  contract  for 
800  tons.  I  cannot  see  why  the  fact  of  the  letters  crossing  each 
other  should  prevent  their  making  a  good  contract.  If  I  say 
I  am  willing  to  buy  a  man's  house  on  certain  terms,  and  he  at 


6o  TINN  V.   HOFFMANN   &   CO.  [cHAP.  I. 

the  same  moment  says  that  he  is  willing  to  sell  it,  and  these 
two  letters  are  posted  so  that  they  are  irrevocable  with  respect 
to  the  writers,  why  should  not  that  constitute  a  good  contract  ? 
The  parties  are  ad  idem  at  one  and  at  the  same  moment.  On 
these  grounds  it  appears  to  me  that  the  judgment  of  the  Court 
below  was  wrong,  and  ought  to  be  reversed.  I  speak  with 
some  hesitation  in  this  case  when  I  find  that  the  opinion  of  the 
majority  of  my  brothers  is  against  me,  and  also  when  the  ques- 
tion turns  entirely  on  the  construction  of  a  somewhat  ambigu- 
ously written  letter. 

Archibald,  J.  I  am  of  opinion  that  the  judgment  of  the 
Court  below  was  correct.  The  question  turns  upon  the  con- 
struction of  these  letters.  In  order  to  see  the  true  meaning  of 
the  letter  of  November  29th,  which  is  chiefly  in  question,  we 
must  pay  attention  to  the  whole  correspondence.  Now,  in 
order  to  constitute  a  contract  it  is  necessary  that  there  should 
be  an  offer  substantially  accepted  in  terms,  and  we  have  to  see 
whether  there  is  anything  of  that  kind  to  be  gathered  from  this 
correspondence.  The  correspondence  and  negotiation  begin 
with  the  plaintiff's  letter  of  November  22d,  asking  the  defend- 
ants to  quote  their  "  lowest  price  for  800  tons  No.  4  Cleveland, 
or  other  equally  good  brand,  delivered  at  Portishead  at  the  rate 
of  200  tons  per  month,  March,  April,  May,  and  June,  1872." 
To  that  the  defendants  reply  on  November  24th,  "  We  are 
obliged  by  your  inquiry  of  22d  inst.,  and  by  the  present  beg  to 
offer  you  800  tons  No.  4  forge  Middlesborough  pig  iron  (brand 
in  our  option,  Cleveland  if  possible)  at  645-.  per  ton,  delivered 
at  Portishead,  delivery  200  tons  per  month,  March,  April,  May, 
and  June,  1872."  Then  they  add,  "  IVaiting your  reply  by  return, 
we  remain,"  etc.  Now  if  there  had  been  a  reply  from  the  plain- 
tiff by  return,  in  the  terms  of  that  letter,  saying,  "  You  can 
enter  me  800  tons  on  the  terms  and  conditions  named  in  your 
favor,"  there  would  have  been  undoubtedly  a  perfectly  good 
contract  ;  but,  in  the  first  place,  there  is  no  reply  by  return  at 
all.  The  next  letter  from  the  plaintiff  is  on  November  27th,  in 
which,  instead  of  accepting,  he  says,  "  The  price  you  ask  is 
high.  If  I  made  the  quantity  1200,  delivery  200  tons  per  month 
for  the  first  six  months  of  next  year"  (that  is  introducing  a  new- 
element  altogether),  "  I  suppose  you  would  make  the  price 
lower."  That  is  a  suggestion  that  he  is  asking  for  a  lower  price 
for  1200  tons,  deliverable  200  tons  per  montli,  beginning  in  Jan- 
uary instead  of  March  ;  it  is  quite  clear  that  the  suggestion  con- 
tained in  that  letter,  that  an  offer  should  be  made  of  1200  tons, 
is  an  entire  thing.  In  reply  to  that  we  have  a  letter  of  the  de- 
fendants of  November  28th,  on  which  the  question  mainly  turns. 


SEC.  ic]  TINN   V.    IIOrFMANN    &    CO.  6l 

in  which  they  say,  "  In  reply  to  your  favor  of  yesterday,  we  beg 
to  state  that  we  are  willing  to  make  you  an  offer  of  further  400 
tons,"  and  so  on,  "  200  tons  in  January,  200  tons  in  February, 
at  the  same  price  we  quoted  you  by  ours  of  the  24th  inst.,  though 
the  rate  of  freight  at  the  above-named  time  will  doubtless  be 
considerably  higher  than  that  of  the  following  months.  .  .  . 
Kindly  let  us  have  your  reply  i>y  7-eturn  of  post  as  to  whether  you 
accept  our  offers  of,  together,  1200  tons."  Now,  then,  dealing 
with  that,  the  plaintiff's  letter  of  November  27th  is  a  proposal 
for  1200  tons,  and  for  a  deliver)-,  beginning  in  January  instead 
of  in  March  ;  and,  although  the  defendant's  letter  of  the  28th 
concludes  by  the  use  of  the  word  "  offers'^  instead  of  "  offer,'' 
we  must  take  it  altogether,  and  take  it  in  connection  with  the 
plaintiff's  letter  of  November  27th,  "  our  offers  of  together  1200 
tons.'''  I  have  not  come  to  this  conclusion  without  some  hesita- 
tion during  the  course  of  the  argument  ;  but,  upon  the  whole, 
the  only  conclusion  at  which  I  can  arrive,  looking  at  these  letters 
together,  is  that  this  is,  in  substance,  one  offer  of,  together,  1200 
tons  ;  and,  treating  the  original  proposal  which  had  not  been 
accepted  as  at  an  end  on  November  27th,  this  is  a  fresh  begin- 
ning of  the  negotiation.  It  is  now  an  offer  of  1200  tons  for  de- 
liveries in  these  months  at  695-.,  and  not  at  a  lower  price  ;  and, 
therefore,  in  order  to  constitute  a  good  contract  in  writing,  there 
must  be  an  answer  to  that  in  the  terms  asked  for,  accepting  it 
upon  the  terms  offered.  I  think,  therefore,  that,  if  the  plaintiff's 
letter  of  November  28th,  which  crossed  the  defendant's  letter 
of  the  same  date,  had  been  written  afterward,  I  could  not  have 
regarded  it  as  an  acceptance  of  the  proposal  in  the  defendant's 
letter.  There  is,  in  fact,  no  answer  to  that  letter  accepting  it, 
unless  the  plaintiff's  letter  of  November  28th,  which  crossed  it, 
can  be  treated  as  amounting  to  an  acceptance  of  an  offer  which 
the  plaintiff,  at  the  time,  had  never  received.  I  do  not  think  it 
is  necessary,  in  giving  judgment  now,  to  further  decide  that, 
nor  am  I  prepared  to  decide  the  question  as  to  how  far  letters 
crossing  each  other  may  be  treated  as  binding,  or  to  decide 
whether  that  would  amount  to  an  acceptance  or  not,  but  I  am 
not  at  all  prepared  to  say  that  it  would.  The  inclination  of  my 
mind  is  against  holding  that  it  would  be  an  acceptance.  I  do 
not  think  it  is  necessary  to  go  into  that  now  ;  because  if  the 
defendant's  letter  of  November  28th  is  in  substance  an  offer  of 
1200  tons,  the  plaintiff's  letter  of  that  date,  even  if  it  had 
been  written  afterward,  would  not,  in  my  judgment,  have 
amounted  to  an  acceptance.  I  think,  therefore,  there  has 
been  no  offer  accepted  in  terms,  and  that  there  has  been  no 
such  contract  as  is  alleged  here,  and  for  these  reasons  1   tni,.^ 


62  TINN   V.    HOFFMANN   &   CO.  [CHAP.  I. 

the  judgment  of  the  Court  below  was  correct,  and  should  be 
affirmed. 

OuAiN,  J.  I  agree  with  my  brother  Honyman  in  thinking 
that  the  decision  of  the  Court  below  is  wrong.  I  agree  also 
with  the  Lord  Chief  Baron  in  his  judgment  below,  that  there 
was  a  good  contract  in  this  case  for  800  tons.  The  negotiation 
begins,  and  the  object  of  it  is  to  purchase  800  tons,  and  not  1200 
tons.  The  first  letter  is  the  plaintiff's  letter,  "  Please  quote 
your  lowest  price  for  800  tons  delivered  at  the  rate  of  200  tons 
per  month,  March,  April,  May,  and  June,  1872."  That  was  the 
plaintiff's  object  in  opening  the  negotiation,  and  it  is  necessary 
to  bear  that  in  mind  in  order  to  see  how  the  addition  of  400  tons 
has  been  introduced  into  this  contract.  That  letter  is  answered 
by  the  defendant's  letter  of  November  24th  making  a  distinct 
offer  of  800  tons  at  (x^s.  Now,  therefore,  we  have  the  offer 
made  by  this  letter  of  the  24th,  and  that  offer  is  open  until  the 
return  of  post  on  the  next  day  ;  and  had  that  offer  been  accepted 
by  the  plaintiff's  posting  a  letter  on  the  25th  it  would  have  been 
a  complete  contract.  It  is  well  established  (see  Dunlop  v.  Hig- 
gins,  I  H.  of  L.  Cas.  396-400)  that  posting  a  letter  in  reply  to 
an  offer  completes  the  contract.  Now,  here  there  is  no  answer 
by  return  of  post,  nor  until  November  27th  ;  but  on  that  day, 
and  after  the  time  when  that  offer  was  open,  the  plaintiff  writes 
this  letter,  treating  the  negotiation  as  I  read  it  as  still  open  ; 
he  does  not  reject  the  offer  altogether  on  the  score  of  price,  but 
he  makes  the  usual  inquiry,  "  If  I  were  to  make  the  quantity 
larger,  and  were  to  take  1200  tons  instead  of  800  tons,  deliver- 
able in  the  first  six  months  of  next  year,  would  you  give  it  me 
at  a  lower  price  ?"  That  is  a  mere  letter  of  inquiry  ;  it  is  not  a 
letter  saying  "  your  price  is  too  high,  and  I  reject  the  800  tons." 
The  writer  evidently  thought  the  800  tons  were  still  reserved, 
and  it  is  immaterial  to  the  view  I  take  of  it  whether  he  was  right 
01  wrong  in  so  thinking.  I  have  been  trying  to  place  myself  in 
his  position.  It  is  plain  that  he  thought  the  800  tons  offer  was 
still  in  reserve,  and  that  he  might  fall  back  on  it,  and  he  merely 
inquires  whether,  if  he  would  take  1200  tons,  the  price  would 
be  lower.  Now,  in  answer  to  that  letter,  came  the  defendants* 
letter  of  November  28th,  on  which  the  whole  question  practically 
turns,  because,  if  that  letter  is  to  be  construed  as  an  entire  and 
distinct  offer  of  1200  tons,  and  not  as  renewing  the  offer  of  the 
24th,  with  an  additional  offer  of  400  tons,  then  there  would  be 
no  acceptance  of  the  1200  tons,  and  the  judgment  for  the  de- 
fendants would  be  right.  According  to  the  judgment  of  the 
learned  barons  in  the  Court  below,  as  I  understand,  that  was 
the  point  on  which  they  differed.     They  all  admitted  that  if 


SEC,  ic]  TINN   V.    HOFFMANN   &   CO.  63 

this  letter  could  be  properly  construed  to  mean  two  offers,  then 
there  has  been  an  acceptance  of  the  800  tons.  What  is  this 
letter?  It  is  an  answer  to  the  plaintiff's  inquiry,  "If  I  take 
1200  tons  will  you  do  it  for  less  ?"  That  being  the  sole  object 
of  the  letter  of  November  27th,  it  was  idle  to  make  a  fresh  offer 
of  1200  tons  at  the  same  price — the  whole  object  being  to  try  to 
get  it  at  less.  It  would  be  idle  and  absurd,  therefore,  to  say, 
We  offer  you  1200  tons  at  6gs.,  when  the  whole  object  of  the 
negotiation  was  800  tons,  and  when  the  price  had  not  been  low- 
ered. I  therefore  read  this  letter  in  plain  terms  as  simply  say- 
ing, We  renew  the  offer  of  800  tons,  which  is  therefore  still  open 
to  you  until  the  next  post,  and  in  addition  to  that  you  can  have 
400  tons  more,  to  be  delivered  next  year  in  two  quantities  of 
200  tons  each,  and  if  I  have  an  answer  to  either  of  these  offers 
by  return  of  post,  that  is  sufficient.  Accordingly  they  say 
it  is  an  offer  for  a  "  further  400  tons,"  and  they  refer  expressly 
to  the  letter  of  November  24th,  "  at  the  same  price  we  quoted 
you  by  ours  of  the  24th  inst.,"  thus  incorporating  the  two  letters 
together  as  though  they  were  to  be  read  as  one  letter,  and  they 
conclude  it  by  saying,  "  Kindly  let  us  have  your  reply  by  return 
of  post  as  to  whether  you  accept  our  oj^ers  of,  together"  (sum- 
ming them  up  together  at)  "  1200  tons."  Now,  as  I  read  that 
letter,  they  incorporate  with  it  their  previous  letter  of  the  24th, 
they  do  not  make  a  distinct  offer  of  1200  tons,  but  they  renew 
the  offer  of  800  tons,  and  add  a  further  offer  of  400  tons  at  the 
same  price.  As  I  have  said  before,  it  seems  to  me  that  the  sole 
object  of  the  plaintiff's  inquiry  is  to  know  whether,  if  he  took 
a  larger  quantity,  the  defendants  would  make  the  price  less. 
The  conditions  of  the  letter  of  the  24th  might  have  been  waived 
at  any  time  until  the  offer  was  renewed.  The  defendants,  when 
they  wrote  and  posted  their  letter  of  the  28th,  renewed  and 
re-opened  the  letter  of  the  24th,  and  kept  it  open  until  the 
return  of  post  on  the  29th.  The  defendant's  offer  of  the  24th 
being  re-opened,  the  plaintiff's  letter  of  the  28th  (and  that  is 
where  I  differ  from  the  majority  of  the  Court),  is  in  answer  to 
that  letter  and  not  to  the  letter  that  crossed  it  by  anticipation. 
It  says  distinctly,  in  terms,  "  You  can  enter  me  800  tons  on  the 
terms  and  conditions  named  in  your  favor  of  the  24/"//."  If,  as 
I  am  of  opinion  is  the  case,  the  offer  of  November  24th  was  still 
open,  when  that  letter  was  posted,  there  is  a  contract  ;  and  on 
that  ground  I  am  of  opinion  that  the  judgment  below  is  wrong. 
I  am  fortified  in  this  view  by  the  correspondence.  The  plain- 
tiff's letter  of  the  28th  says  :  "  You  can  enter  me  800  tons  on 
the  terms  and  conditions  named  in  your  favor  of  the  24th  ;" 
and  then  it  goes  on,  "  but  I  trust  you  will  enter  the  other  400, 


6^  TINN   V.    HOFFMANN   &   CO.  [cHAP.  I. 

making  in  all  1200  tons  referred  to  in  my  last,  at  68i-.  per  ton, 
ex  ship  Portishead."  That  is  closing  the  800  tons,  and  offering 
to  take  other  400  tons,  not  a  conditional  offer,  but  an  express 
closing  with  the  offer  of  800  tons,  and  the  expression  of  a  trust 
that  the  defendants  will  enter  the  other  400  tons.  Then  after 
the  contract,  as  I  think,  was  closed  with  regard  to  the  800  tons, 
came  the  defendants'  letter  of  the  29th,  not  rejecting  but  clos- 
ing, in  my  judgment,  the  contract  for  the  800  tons,  not  saying  : 
"  We  cannot  give  you  at  once  the  800  tons  unless  you  take  the 
1200  tons,"  or  anything  of  that  kind,  not  in  the  slightest  degree 
rejecting  or  saying  that  the  contract  with  regard  to  the  800  tons 
was  not  closed  ;  but,  because  the  two  together  come  to  1200 
tons,  saying,  "  We  are  obliged  by  your  favor  of  yesterday,  in 
reply  to  which  we  are  sorry  to  state  that  we  are  not  able  to  book 
your  esteemed  order" — that  is  to  say,  "  we  cannot  take  an  addi- 
tion of  400  tons  to  the  800  tons  at  a  lower  price  than  that  offered 
to  you  by  ours  of  yesterday — viz.,  6gs.,  and  even  this  offer  we 
can  only  leave  you  on  hand  for  reply  by  to-morrow  before 
12  o'clock."  It  is  idle  to  say  that  that  offer,  so  far  as  relates  to 
the  800  tons,  should  be  kept  open  until  12  o'clock  next  day, 
because  they  had  the  letter  in  their  hands,  the  plaintiff's  letter, 
accepting  it.  Looking  at  the  whole  negotiation,  the  only  con- 
tingency was  as  to  the  price  of  the  extra  400  tons.  I  come  to 
the  conclusion  from  the  terms  of  the  letters,  and  looking  at 
what  appears  to  me  to  be  the  plain  meaning  of  the  parties,  that 
as  soon  as  the  defendants  would  not  give  any  additional  quan- 
tity at  a  lesser  price,  the  parties  fell  back  on  the  first  offer  of 
800  tons.  For  these  reasons  I  think  the  judgment  of  the  Court 
below  was  wrong  and  ought  to  be  reversed. 

Grove,  J.  I  am  of  opinion  that  the  judgment  of  the  Court 
below  should  be  affirmed.  After  the  plaintiff's  letter  of  Novem- 
ber 22d,  asking  for  the  price  of  the  iron,  the  defendants'  letter 
of  the  24th  is  a  distinct  offer  of  800  tons  at  6gs.,  to  be  delivered 
in  certain  particular  months.  Therefore  I  assume  that,  at  that 
time,  the  vendors  were  ready  to  part  with  their  iron  under  the 
particular  conditions  of  that  letter — namely,  200  tons  in  four 
particular  months  at  a  particular  place,  and  at  a  certain  price, 
which  latter,  it  seems,  was  varying  rapidly  at  that  time.  The 
letter  concludes,  "  Waiting  your  reply  by  return."  There  was 
no  reply  by  return,  and  consequently  there  was  an  end  to  that 
offer — there  was  then  no  contract,  no  bargain  of  any  sort.  On 
November  27th,  a  fresh  negotiation  was  opened  by  the  plaintiff, 
who  begins  by  saying,  "  The  price  you  ask  is  high.  If  I  made 
the  quantity  1200  tons,  delivery  200  tons  per  month  for  the  first 
six  months  of  next  year,  I  suppose  you  would  make  the  price 


SEC.  !<:.]  TINN  V.   HOFFMANN  &   CO.  65 

lower."  That  is  not  an  acceptance.  The  plaintiff  does  not 
seem  to  doubt  that  he  might  have  the  1200  tons  at  the  same 
price  of  69:*.,  but  he  offers  to  take  an  extra  400  tons,  with  a  view 
to  reducing  the  price  if  possible.  That  might,  he  thinks,  be  an 
inducement  ;  and  he  therefore  makes  a  new  offer,  as  a  com- 
mencement of  a  new  negotiation.  In  answer  to  that  the  defend- 
ants write  on  November  2Sth,  that  is,  six  days  after  the  orig- 
inal negotiation  began,  "  In  reply  to  your  favor  of  yesteiday 
we  beg  to  state  that  we  are  willing  to  make  you  an  offer  of 
further  400  tons,  200  tons  in  Januarj',  200  tons  in  February,  at 
the  same  price  we  quoted  you  by  ours  of  the  24th  inst."  It  is 
clear  that  they  consider  it  as  an  entirely  new  offer.  It  is  an 
entirely  different  offer — namely,  an  offer  of  1200  tons  at  the  full 
price  which  was  asked  for  the  800  tons  ;  it  is,  in  fact,  an  offer  at 
a  higher  price.  Then  they  say  "  kindly  let  us  have  your  reply 
by  return  of  post,  as  to  whether  you  accept  our  offers,"  not  of 
either  the  800  tons  or  the  400  tons,  but  "  of  together  1200  tons." 
There  was  no  reply,  strictly  speaking,  to  that  letter,  for  it  was 
to  be  by  return  of  post,  and  there  was  no  reply  by  return. 
Therefore,  unless  the  letters  which  crossed  each  other  in  the 
post  can  be  supposed  to  constitute  a  contract,  the  offer  was  not 
accepted,  and  there  was  an  end  to  the  case.  But  I  assume  for 
the  moment  that  the  plaintiff's  letter  of  November  28th  was 
written  after  the  defendants  had  received  the  plaintiff's  letter 
of  the  same  date.  The  plaintiff  does  not  say  I  accept  your 
offers  together,  but  (supposing  this  to  amount  to  an  acceptance) 
"  you  can  enter  me  800  tons  on  the  terms  and  conditions  named 
in  your  favor  of  the  24th  inst.,  but  I  trust  you  will  enter  the 
other  400  tons,  making  in  all  1200  tons  referred  to  in  my  last  at 
68j-.  per  ton  ^.r-ship  Portishead."  Now  I  assume  for  the 
moment,  that  this  is  an  acceptance  so  far  as  the  800  tons  go  ; 
my  opinion  is  that  that  is  not  the  defendant's  offer  of  November 
28th,  and  that  is  enough,  in  my  judgment,  to  decide  the  case. 
It  is  not  an  acceptance  in  the  terms  offered  in  the  defendant's 
letter  of  the  28th,  and  therefore  there  was  no  contract.  I  think 
there  are  two  other  answers  on  which,  although  I  do  not  express 
by  any  means  a  strong  opinion,  and  do  not  give  my  decision 
upon  the  ground  of  them,  still  I  am  inclined  to  think  that  they 
are  in  favor  of  the  defendant  in  the  judgment  of  the  Court 
below  on  this  ground.  Now,  it  is  somewhat  singular  that  it 
has  not  been  decided  up  to  the  present  day  whether,  when  two 
letters  cross  each  other  in  the  course  of  post,  the  one  amounting 
in  terms  to  an  acceptance  of  the  terms  offered  in  the  other,  such 
letters  amount  to  a  contract.  From  what  I  have  heard  in  argu- 
ment, upon  the  best  consideration   I  liave  been  able  to  give  to 


66  TINN   V.    HOFFMANN   &   CO.  [CHAP.  i. 

this  case,  I  am  of  opinion  that  they  do  not.  Numberless  incon- 
veniences might  be  the  result  of  our  holding  that  they  do.  A 
letter  may  be  put  into  the  post  or  may  be  sent  out  by  a  private 
messenger,  and  then  the  writer  may  repent  of  what  he  has  writ- 
ten, and  may  dispatch  a  telegram  or  send  a  special  messenger 
on  horseback,  saying,  "  I  have  posted  or  sent  to  you  a  letter 
making  you  a  certain  offer,  I  cannot  fulfil  it,  consider  it  can- 
celled." This  second  message  or  telegram  may  arrive  before 
the  letter  itself,  which  may  have  been  miscarried,  and  yet  in  a 
few  days  or  a  week,  the  parties  having  meanwhile  considered 
that  there  was  no  contract,  the  letter  might  come  to  hand.  Is 
it  then  to  become  a  contract  ?  A  great  many  other  cases  might 
be  put,  but  as  far  as  my  opinion  goes  upon  a  question  which 
has  not  been  decided,  in  construing  the  contract,  there  must  be 
an  offer  which  the  person  accepting  has  had  an  opportunity  of 
considering,  and  which  when  he  accepts  he  knows  will  form  a 
binding  contract.  Unless  that  is  done,  where  each  of  them  is, 
so  to  speak,  making  an  offer  or  a  cross  offer,  they  are,  so  to 
speak,  in  fieri,  and  do  not  constitute  a  contract.  Another  ques- 
tion which  was  discussed  in  the  Court  below  is,  whether  the 
plaintiff's  letter  of  November  28th  is  an  unqualified  acceptance  ? 
That  is  a  very  doubtful  question,  I  am  rather  inclined  to  the 
opinion  expressed  by  my  brother  Channell,  that  it  is  not  an 
unqualified  acceptance.  With  regard  to  the  letter  of  Novem- 
ber 24th,  to  my  mind  that  is  out  of  the  question,  excepting  as 
a  statement  of  the  probable  terms  ;  and  the  plaintiff's  letter  of 
the  28th,  I  think,  points  to  this,  "  You  can  enter  me  800  tons 
on  the  terms  and  conditions  named  in  your  favor  of  the  24M  i?ist.,  but 
I  trust  you  will  enter  the  other  400,  making  in  all  1200  tons  at 
68.f. "  In  substance  this  letter  is,  "You  are  really  too  hard 
upon  me.  I  hereby  give  you  so  much  for  the  800  tons,  but  you 
must  put  the  other  400  tons  a  little  lower."  It  is  a  bating  down 
rather  than  an  absolute  acceptance  of  a  contract.  But  the 
ground  on  which  I  express  my  opinion  that  the  Court  below 
was  right  is,  that  the  defendant's  letter  of  November  28th  is  in 
fact  an  answer  to  the  plaintiff's  letter  of  the  27th  ;  that  letter 
must  be  taken  as  a  whole,  and  that  letter  contemplated  a  sale 
of  1200  tons,  that  is  not  accepted,  therefore  the  judgment  of  the 
Court  below  is  right. 

Brett,  J.  The  question  is,  whether  upon  a  true  construction 
of  this  correspondence,  there  is  a  binding  contract  between  the 
plaintiff  and  the  defendants  for  the  800  tons  of  iron  at  69^.  It 
is  argued  on  the  one  side  that  such  a  contract  is  disclosed  be- 
cause it  is  said  that  the  defendants'  letter  of  November  24th  is 
an   offer  for  the   sale  of  800   tons  of  iron,   and   this   letter  of 


SEC.  I^.]  TINN    7'.    HOFFMAXX    &    CO.  6/ 

November  28th  leaves  open  the  time  for  accepting  that  offer  of 
November  24th,  and  makes  a  new  offer  with  regard  to  another 
400  tons  ;  and  that  the  defendants'  offer  of  November  24th 
being  thus  opened  by  their  letter  of  the  28th,  the  plaintiff's 
letter  of  the  28th  is  an  acceptance  of  the  defendants'  offer  of 
the  24th.  On  the  other  side  it  is  argued  that  the  defendants' 
letter  of  November  28th  is  not  an  opening  of  their  offer  of  the 
24th,  but  that  it  is  an  offer  with  regard  to  1200  tons  ;  and  that 
even  if  it  were  a  separate  offer  with  regard  to  800  tons  and  400 
tons,  still  that  the  true  view  of  the  matter  is  not  that  it  reopens 
the  letter  of  the  24th,  but  that  it  makes  a  new  offer  with  regard 
to  the  800  tons,  and  another  separate  offer,  with  regard  to  400 
tons  ;  and  that,  upon  such  a  view,  the  renewed  offer  with  regard 
to  800  tons  is  not  accepted,  because  the  letter  of  the  plaintiff  of 
November  28th  was  not  in  answer  to  that  offer,  but  was  a  letter 
crossing  it.  Now  with  regard  to  the  construction  of  the  defend- 
ant's letter  of  November  28th,  it  seems  to  me  that  we  must 
consider  that  the  defendant's  letter  of  November  24th  is  in  an- 
swer to  a  request  of  the  plaintiffs  of  November  22d  for  an  offer 
with  regard  to  800  tons,  and  is  therefore  an  offer  by  them  with 
regard  to  800  tons.  That  offer  left  it  open  to  the  plaintiff  to 
accept  it  within  a  period  which  is  to  be  computed  by  the  return 
of  post.  I  agree  that  the  words,  "  Your  reply  by  return  of 
post"  fixes  the  time  for  acceptance,  and  not  the  manner  of 
accepting.  But  that  time  elapsed  ;  there  was  no  acceptance 
within  the  limited  time.  So  far  from  there  being  an  acceptance, 
it  seems  to  me  that  the  plaintiff's  letter  of  November  27th  re- 
jects that  offer  ;  it  rejects  it  on  the  ground  that  the  price  is 
higher  than  the  plaintiff  is  willing  to  give.  That  offer  is,  there- 
fore, not  accepted  within  the  limited  time,  but  is  rejected,  and 
it  seems  to  me  is  at  once  dead.  The  letter  of  the  27th  then  asks 
for  an  offer  with  respect  to  1200  tons,  and  the  letter  of  Novem- 
ber 28th  is  a  letter  written  "  In  reply  to  your  favor  of  yester- 
day," that  is.  In  reply  to  your  request  for  an  offer  with  regard 
to  1200  tons.  "  I  now  make  you  this  offer."  That  seems  to 
me  to  show  that  the  letter  of  November  28th  of  the  defendants 
is  an  offer  with  regard  to  1200  tons,  and  not  with  regard  to  800 
tons  and  400  tons  separately.  The  way  in  which  the  offer  with 
regard  to  the  1200  tons  is  made  is  this.  "  With  regard  to  the  first 
800  of  them,  I  make  you  a  new  offer  upon  the  same  terms  as  I 
made  in  the  former  offer  on  the  24th.  With  regard  to  the  re- 
maining 400  tons.  I  offer  you  to  deliver  them  at  the  same  price, 
but  at  different  periods  of  delivery."  I  think  that  the  defend- 
ants' letter  of  November  28th,  being  a  letter  in  answer  to  a 
request  with  regard  to  1200  tons,  is  an  offer  with  regard  to  1200 


68  TINN   V.    HOFFMANN   &   CO.  [CHAP.  I. 

tons,  and  that  no  such  offer  was  ever  accepted  ;  but  even  if  it 
could  be  taken  that  it  was  a  separate  offer  with  regard  to  800 
tons  and  400  tons,  I  cannot  accede  to  the  view  that  it  reopened 
the  offer  of  November  24th.  That  offer  was  dead,  and  was  no 
•longer  binding  upon  the  defendants  at  all,  and  therefore  it 
seems  to  me  to  be  a  wrong  phrase  to  say  that  it  reopened  the. 
offer  of  November  24th.  The  only  legal  way  of  construing  it  is 
to  say  that  it  is  a  new  offer  with  regard  to  800  tons.  If  it  were 
a  separate  offer,  which  I  should  think  it  was  not,  it  then  would 
be  a  new  offer  with  regard  to  800  tons,  and  a  separate  offer  with 
regard  to  400  tons,  but,  even  if  it  were  so,  I  should  think  that 
the  new  offer  with  regard  to  the  800  tons  had  never  been 
accepted,  so  as  to  make  a  binding  contract.  The  new  offer 
would  not,  in  my  opinion,  be  accepted,  by  the  fact  of  the  plain- 
tiff's letter  of  November  28th  crossing  it.  If  the  defendants' 
letter  of  November  28th  is  a  new  offer  of  the  800  tons,  that 
could  not  be  accepted  by  the  plaintiff  until  it  came  to  his  knowl- 
edge, and  his  letter  of  November  28th  could  only  be  considered 
as  a  cross  offer.  Put  it  thus  :  If  I  write  to  a  person  and  say, 
"  If  you  can  give  me  ^6000  for  my  house,  I  will  sell  it  you," 
and  on  the  same  day,  and  before  that  letter  reaches  him,  he 
writes  to  me,  saying,  "  If  you  will  sell  me  your  house  for;^6oco 
I  will  buy  it,"  that  would  be  two  offers  crossing  each  other,  and 
cross  offers  are  not  an  acceptance  of  each  other,  therefore  there 
will  be  no  offer  of  either  party  accepted  by  the  other.  That  is 
the  case  where  the  contract  is  to  be  made  by  the  letters,  and 
by  the  letters  only.  I  think  it  would  be  different  if  there  were 
already  a  contract  in  fact  made  in  words,  and  then  the  parties 
were  to  write  letters  to  each  other,  which  crossed  in  the  post, 
those  might  make  a  very  good  memorandum  of  the  contract 
already  made,  unless  the  Statute  of  Frauds  intervened.  But 
where  the  contract  is  to  be  made  by  the  letters  themselves,  you 
cannot  make  it  by  cross  offers,  and  say  that  the  contract  was 
made  by  one  party  accepting  the  offer  which  was  made  to  him. 
It  seems  to  me,  therefore,  in  both  views,  that  the  judgment  of 
the  Court  below  was  right. 

Keating,  J.  I  also  think  that  the  judge  of  the  Court  below 
was  right.  It  seems  to  me  that  the  transaction  disclosed  by 
these  letters  amounts  to  this  :  On  November  22d,  the  plaintiff 
says,  quote  me  a  price  for  800  tons,  deliverable  in  March,  April, 
May,  and  June.  The  defendant  gave  a  price  upon  those  terms 
at  69J.  for  800  tons,  acceptable  by  return  ;  it  was  not  accepted, 
but  rejected,  and  up  to  that  point  we  are  all  agreed,  both  in  the 
Court  below  and  in  the  Court  above,  that  there  is  no  contract. 
The   plaintiff  then   says,  I   will   not   take  the  800  tons  at  that 


SEC.  !<;.]  TINN   V.    HOFFMANN   &   CO.  69 

price  ;  will  you  give  it  me  cheaper  if  I  give  you  an  order  for  a 
larger  quantity  ?  Quote  me  a  price  for  1200  tons.  Now  that  is 
a  separate  and  distinct  requirement  from  that  made  in  his  letter 
of  November  22d,  it  is  a  requirement  relating  to  another  and  a 
dififerent  quantity  of  1200  tons.  It  is  argued,  as  I  understand, 
by  those  who  hold  the  opinion  that  the  judgment  below  was 
wrong,  that  the  answer  does  not  apply  to  the  entire  quantity, 
as  to  which  the  question  is  put,  but  it  applies  to  two  quantities, 
one  of  800  tons  and  another  of  400  tons,  and  that  it  is  so  because 
undoubtedly  the  letter  of  November  28th  does  refer  to  those 
two  quantities.  There  is  a  very  good  reason  why  it  should  do 
so,  because  the  defendant,  being  asked  to  quote  a  price  for 
another  and  different  quantity — namely,  1200  tons — says,  "  I 
quote  you  a  price  of  69^.  for  the  1200  tons,  but  I  cannot  deliver 
them  in  those  four  months,  because  as  to  the  400  tons  I  must 
deliver  them  in  January  and  February."  What  there  is  to 
create  any  confusion  in  that,  I  am  quite  unable  to  conceive.  It 
is  not  the  less  an  offer  of  the  1200  tons,  because  they  say,  as  to 
the  400  tons,  "  we  propose  to  deliver  them  in  two  other  months.' ' 
They  conclude,  "  Let  us  have  your  reply  by  return  of  post,  as 
to  whether  you  accept  our  offers."  Stress  is  laid  upon  that 
word  ;  in  one  sense  they  were  "offers,''  because  there  were  to 
be  two  deliveries,  but  they  get  rid  of  any  difficulty  on  that 
score,  because  they  go  on  to  say,  "  our  offers  of  together  1200 
tons.'"  I  am  unable  to  read  that  letter  as  being  anything  except 
an  offer  in  answer  to  the  requirement  of  the  plaintiff  as  to  the 
1200  tons,  and  not  as  to  any  less  quantity.  That  renders  it 
entirely  unnecessary  to  consider  the  other  question  as  to  whether 
the  letter  of  the  plaintiff,  crossing  that  letter  of  the  defendants 
of  the  28th,  alters  the  effect  of  the  last-mentioned  letter  ;  but 
if  it  were  necessary  to  consider  how  far  a  crossing  letter  would 
alter  the  state  of  things,  and  whether  the  two  letters  crossing 
would  constitute  a  contract,  my  present  impression  is  unques- 
tionably in  accordance  with  the  opinion  expressed  by  my  brother 
Brett  ;  but  I  do  not  think  it  necessary  to  do  more  than  to  guard 
simply  against  being  supposed  to  agree  in  the  opinions  ex- 
pressed by  my  brothers  Honyman  and  Quain  upon  that  point, 
my  present  impression  being  the  other  way,  and  in  accordance 
with  the  opinion  expressed  by  my  brother  Brett.  Therefore, 
upon  the  whole,  I  think  that  the  judgment  below  should  be 
affirmed. 

Blackburn,  J.  I  also  think  that  the  judgment  should  be 
affirmed.  The  question  turns  upon  the  true  construction  of  the 
defendant's  letter  of  November  28th,  and  that  must  be  taken 
with  the  other  letter  to  which  it  is  an  answer.     The  letter  of  the 


-O  TINN  V.   HOFFMANN   &   CO.  [chap.  l. 

24th  is  an  offer  of  800  tons.  No  reply  was  sent  by  return,  and, 
that  offer  being  one  which  required  an  answer  by  return  of 
post,  I  agree  with  my  brother  Brett  that  it  was  gone  as  soon  as 
there  was  no  reply  by  return.  It  was  perfectly  competent  to 
the  defendants  to  renew  it.  Then,  on  November  27th,  the 
plaintiff  writes  a  letter,  saying,  "  The  price  you  ask  is  high," 
so  that  not  only  was  that  out  of  time,  for  November  25th  was 
the  day  the  answer  was  to  have  been  sent,  but  it  was  not  an 
acceptance  of  the  offer,  it  was  a  refusal,  "  The  price  you  ask  is 
high,"  and  he  goes  on,  "  If  I  made  the  quantity  1200  tons," 
delivery  so  and  so,  "I  suppose  you  would  make  the  price  lower. 
Your  reply  by  return  will  oblige."  That  is  a  request  on  the 
part  of  plaintiff,  "HI  will  make  the  order  larger,  will  you 
make  the  price  lower?"  To  that  came  in  answer  the  defend- 
ants' letter  of  November  28th,  which  has  been  read  several 
times,  and  which  I  need  not  read  over  again.  I  think,  taking 
the  two  letters  together,  the  one  in  answer  to  the  other,  we  can 
see  what  they  mean.  If,  in  answer  to  that  letter  of  November 
28th,  written  by  the  defendants  to  the  plaintiff,  in  which  they 
ask  for  an  answer  by  return  of  post,  there  had  been  a  letter  sent 
saying,  "  I  will  accept  the  800  tons  and  not  take  the  400  tons," 
and  that  had  been  relied  upon  as  a  binding  contract,  and  the 
defendants  had  resisted  that,  and  said  :  "  We  did  not  offer  you 
800  tons,  we  offered  you  1200  tons  if  you  would  take  them,  but 
not  1200  tons  that  you  might  split  into  two  quantities,  taking 
the  800  and  rejecting  the  400  tons,"  the  question  would  have 
been  raised  whether  this  letter  of  the  defendants,  of  Novem- 
ber 28ih,  read  as  it  must  be  read,  with  the  plaintiff's  letter  of 
the  27th,  was  an  offer  of  that  sort  which  my  brothers  Honyman 
and  Quain  think  it  was,  or  whether  it  was,  as  the  majority  of 
the  Court  have  already  said,  an  offer  of  1200  tons,  and  1200  tons 
only  ?  I  am  of  opinion  that  it  was  an  offer  of  the  1200  tons,  and 
the  1200  tons  only.  I  do  not  think  it  necessary  to  repeat  what 
has  been  said  already,  but  that  is  a  sufficient  reason,  and  that 
is  the  only  reason,  as  I  understand,  stated  in  the  Court  of  Ex- 
chequer as  a  ground  for  their  judgment,  and  that  is  the  point 
upon  which  that  judgment  turns.  But  then  there  arises  another 
question  ;  on  that  same  November  28th  the  plaintiff,  before  he 
received  or  knew  of  the  defendants'  letter  of  November  28th, 
had  written  a  letter  which  I  read  to  be  an  offer  on  his  part,  "  I 
will  take  800  tons,  at  the  price  of  69^."  That  letter  crossed 
the  letter  of  the  defendants,  and  I  think  my  brothers  Honyman 
and  Quain,  necessarily,  as  part  of  their  judgment,  are  of  opin- 
ion, that  that  offer,  crossing  the  other  offer,  and  being  ad  idem, 
according  to  their  construction  of  the  first  contract,  did  make  a 


SEC.  ic]  TINN   V.    HOFFMANN   &    CO.  /I 

binding  engagement  between  the  parties.  It  is  not  necessary 
in  the  present  case  for  the  Court  of  Exchequer  Chamber  to  de- 
cide that  point,  and  therefore  what  I  am  now  going  to  say  is 
not  to  be  considered  at  all  as  part  of  the  judgment  of  the  court 
of  error,  but  as  my  own  individual  opinion.  When  a  contract 
is  made  between  two  parties,  there  is  a  promise  by  one,  in  con- 
sideration of  the  promise  made  by  the  other  ;  there  are  two 
assenting  minds,  the  parties  agreeing  in  opinion,  and  one  having 
promised  in  consideration  of  the  promise  of  the  other — there  is 
an  exchange  of  promises  ;  but  I  do  not  think  exchanging  offers 
would,  upon  principle,  be  at  all  the  same  thing.  There  is,  I 
believe,  a  total  absence  of  authority  on  the  point.  I  do  not 
think,  though  I  am  not  sure,  that  the  question  has  ever  been 
raised  before.  The  promise  or  offer  being  made  on  each 
side  in  ignorance  of  the  promise  or  the  offer  made  on  the 
other  side,  neither  of  them  can  be  construed  as  an  accept- 
ance of  the  other.  Either  of  the  parties  may  write  and  say, 
"  I  accept  your  offer,  and,  as  you  perceive,  I  have  already  made 
a  similar  offer  to  you,"  and  then  people  would  know  what  they 
were  about,  I  think  either  side  might  revoke.  Such  grave  in- 
convenience would  arise  in  mercantile  business  if  people  could 
doubt  whether  there  was  an  acceptance  or  not,  that  it  is  desira- 
ble to  keep  to  the  rule  that  an  offer  that  has  been  made  should 
be  accepted  by  an  acceptance  such  as  would  leave  no  doubt  on 
the  matter.  I  am  not  aware,  as  I  said  before,  that  any  point  of 
this  sort  has  ever  been  raised  before,  and  consequently  this 
must  not  be  considered  as  the  judgment  of  the  majority  of  the 
Exchequer  Chamber. 

QuAiN,  J.  My  brother  Blackburn  mistook  me  with  regard  to 
the  letter  of  November  28th.  I  treat  the  plaintiff's  letter  of 
November  28th  as  an  answer  to  the  defendant's  letter  of  Novem- 
ber 24th.     I  go  by  the  express  terms  of  the  letter. 

Blackburn,  J.  I  certainly  misunderstood  my  brother  Quain, 
and  I  am  sorry  for  it.  It  seems  to  me  that  the  offer  of  Novem- 
ber 24th  had  been  already  rejected  by  the  plaintiff,  and  had 
expired  for  six  or  seven  days,  and  1  cannot  see  how  it  could  be 
revived  again  by  the  plaintiff  writing  another  letter. 

Judgment  of  the  majority  of  the  Court  below  affirmed. 


72  NEWCOMB   v.    DE    ROOS.  [CHAP.  I. 

NEWCOMB    AND  Another  v.  DE    ROOS. 

In  the  Queen's  Bench,  November  5,   1859. 

^Reported  in  2  Ellis  &^  Ellis  2  71.  J 

B.  C.  Robinson  moved  for  a  prohibition  to  the  Judge  of  the 
County  Court  of  Stamford,  to  rest.^ain  further  proceedings  in  a 
plaint  issued  from  that  Court  by  the  plaintiffs  against  the 
defendant. 

It  appeared  from  the  affidavit  that  the  plaintiffs,  who  were 
stationers  residing  and  carrying  on  business  at  Stamford,  had 
sued  the  defendant,  who  was  a  vendor  of  patent  medicines  in 
Berners  Street,  London,  to  recover  ^^  4s.  lod.  balance  of 
account  for  advertisements  inserted  by  the  plaintiffs  in  certain 
newspapers,  on  the  defendant's  order.  The  arrangement  be- 
tween the  plaintiffs  and  the  defendant  had  been  that  certain 
advertisements  were  to  be  inserted  by  the  plaintiffs  for  the 
defendant,  for  which  the  plaintiffs  were  to  receive  payment  in 
goods,  and  which  goods  were  delivered  by  the  defendant  in 
London  to  the  plaintiffs'  order.  All  orders  given  by  the  de- 
fendant, or  on  his  behalf,  to  the  plaintiffs  for  the  insertion  of 
advertisements,  and  all  communications  relating  to  the  trans- 
actions between  the  plaintiffs  and  the  defendant,  were  written 
in  London,  and  transmitted  through  the  post  thence  to  Stam- 
ford. The  defendant  did  not  reside  or  carry  on  business  within 
the  jurisdiction  of  the  Stamford  County  Court.  In  the  particu- 
lars of  demand  the  defendant  was  debited  with  jQ2x  2,s.  7</.,  for 
various  advertisements,  and  with  ^£^1  los.  for  "cash,"  and 
£2  IS.  lid.  for  "  returns  ;"  and  was  credited  with  the  amount 
of  the  goods  received  by  the  plaintiffs  "  on  sale  or  return." 

B.  C.  Robinson,  for  the  defendant.  Stat.  9  &  10  Vict.  ch.  95, 
§  60  enacts  that  the  summons  in  a  County  Court  plaint  "  may 
issue  in  any  district  in  which  the  defendant"  "  shall  dwell  or 
carry  on  his  business  at  the  time  of  the  action  brought  ;  or,  by 
leave  of  the  Court  for  the  district  in  which  the  defendant" 
"  shall  have  dwelt  or  carried  on  his  business,  at  some  time 
within  six  calendar  months  next  before  the  time  of  the  action 
brought,  or  in  which  the  cause  of  action  arose,  such  summons 
may  issue  in  either  of  such  last-mentioned  Courts."  And,  by 
Stat.  19  &  20  Vict.  ch.  108,  §  15,  "  The  registrar  of  any  County 
Court  may  issue  a  summons  against  any  defendant  residing  out 
of  the  jurisdiction  of  such  Court,  at  any  time,  upon  the  appli- 
cation of  any  plaintiff  who  will  depose  before  such  registrar 
that  his  cause  of  action  has  arisen   within  the  jurisdiction  of 


SEC.  ic]  NEWCOMB   V.    DE    ROOS.  73 

such  Court,  in  like  manner  as  any  judge  of  any  County  Court 
has  now  power  to  issue  any  such  summons."  The  summons, 
in  the  present  case,  was  issued  on  the  assumption  that  the  cause 
of  action  arose  within  the  district  of  the  Stamford  County 
Court.  But  "  the  cause  of  action"  means  the  whole  cause  of 
action  ;  J?e  Fuller,'  Borthwick  v.  Walton,"  Jackson  v.  Beaumont.* 
Here,  the  whole  cause  of  action  did  not  arise  within  the  dis- 
trict of  the  Court  from  which  the  summons  issued.  The  order, 
which  was  part  of  the  contract,  was  given  out  of  the  district, 
though  the  work  was  done  within  it,  as  in  Borthwick  v.  Walton.* 
[Wightman,  J.  The  order  was  received  at  Stamford,  and  it  was 
no  contract,  or  part  of  a  contract,  until  received  and  accepted.] 
The  causa  causans  was  the  writing  the  letter  giving  the  order. 
The  defendant  had  no  further  control  over  the  letter  after  he 
had  posted  it.  [Cockburn,  C.J.  That  is  only  in  consequence 
of  the  regulations  of  the  Post-Ofiice.  The  defendant  could 
write  again,  before  the  receipt  and  acceptance  of  the  order,  and 
revoke  it.]  In  Rex  v.  Burdett*  it  was  held  by  the  majority  of 
the  Court  that  a  delivery  at  a  post-office,  in  one  county,  of  a 
letter,  containing  a  libel,  directed  to  and  received  by  a  person 
in  another  county,  was  a  publication  of  the  libel  in  the  first 
county.  To  put  an  extreme  case  :  Suppose  that  the  plaintiffs 
and  the  defendant  were  standing  on  different  sides  of  the 
boundary  line  of  the  Stamford  district,  and  that  the  order  was 
then  verbally  given  by  the  defendant,  and  accepted  by  the 
plaintiffs  ;  surely  part  of  the  contract  would  arise  without  the 
district.  Further,  the  plaintiffs'  particulars  do  not  show  where 
the  cause  of  action  with  respect  to  the  two  items  of  "  cash"  and 
"  returns"  arose.  [Cockburn,  C.J.  If,  on  the  trial,  the  plain- 
tiffs did  not  prove  that  the  cause  of  action  with  respect  to  those 
items  arose  within  the  district,  those  items  would  of  course  be 
disallowed.  Hill,  J.  You  are  asking  us  to  review  the  decision 
of  the  registrar.]  He  has  no  discretion  ;  he  must  issue  the 
summons  if,  according  to  the  language  of  the  forty-first  rule  of 
practice  of  the  County  Courts,  "he  is  satisfied"  that  the  cause 
of  action  arose  within  the  district.  [Cockburn,  C.J.  You 
are  bound  to  show  us  that  he  was  satisfied  upon  insufficient 
grounds.] 

Cockburn,  C.J.  I  am  of  opinion  that  there  should  be  no 
rule.  Admitting  that,  to  enable  the  registrar  to  issue  a  sum- 
mons to  a  defendant  residing  beyond  the  district,  the  whole 
cause  of  action  must  have  arisen  within  that  district,  I  think 
that,  here,  the  whole  cause  of  action  did  arise  within  the  dis- 

1  2  E.  &  B.  573.  '  15  Com.  B.  501.  ^  II  Exch.  300. 

-»  15  Com.  B.  501.  »  4  B.  &  Aid.  95. 


74 


TAYLOR   V.   JONES.  [CHAP.  I. 


trict  of  the  Stamford  County  Court.  The  cause  of  action  is 
work  done  by  the  plaintiffs  at  the  request  of  the  defendant. 
The  request  of  the  defendant  was  made  in  London,  by  letter  ; 
but  it  was  not  such  a  request  as  created  a  contract  until  it  was 
received  and  accepted  by  the  plaintiffs,  and  that  took  place  at 
Stamford,  where  also  the  work  was  done.  The  whole  cause  ol 
action,  therefore,  both  the  work  and  the  contract  under  which 
it  was  performed,  arose  at  Stamford. 

WiGHTMAN,  J.,  concurred. 

Hill,  J.  I  accept  the  test  proposed  by  the  defendant's  coun- 
sel. Suppose  the  two  parties  stood  on  different  sides  df  the 
boundary  line  of  the  district,  and  that  the  order  was  then  ver- 
bally given  and  accepted.  The  contract  would  be  made  in  the 
district  in  which  the  order  was  accepted.  Here  the  order  was 
accepted  in  the  district  of  the  Stamford  County  Court,  and  the 
work  was  done  within  that  district.  The  whole  cause  of  action, 
therefore,  arose  within  that  district. 

Blackburn,  J.,  was  absent. 

Rule  refused. 


TAYLOR  V.  JONES. 


In   the   High   Court   of   Justice,    Common    Pleas   Division, 

November  30,   1875. 

\^Re ported  171  Law  Reports,  i  Common  Pleas  Division  87.] 

The  plaintiff  sued  the  defendant  in  the  Mayor's  Court,  Lon- 
don, for  ;^  1 1  4i-.  for  goods  sold  and  delivered  under  the  follow- 
ing circumstances  :  The  defendant,  who  was  an  importer  and 
manufacturer  of  sewing-machines  carrying  on  business  in  Bury 
Street,  St.  Mary  Axe,  in  the  city  of  London  (which  is  within  the 
jurisdiction  of  the  Mayor's  Court),  on  April  3d  last,  wrote  and 
sent  by  the  post  a  letter  addressed  to  the  plaintiff,  who  is  a 
wholesale  perfumer  carrying  on  business  in  Red  Cross  Street, 
Southwark,  in  the  county  of  Surrey,  containing  an  order  for  a 
quantity  of  Brown  Windsor  Soap  ;  the  plaintiff  did  not  answer 
this  letter,  but  on  the  14th  he  executed  the  order  by  sending  his 
servant  with  the  goods  to  the  defendant  at  Bury  Street,  St. 
Mary  Axe,  where  the  defendant  accepted  them. 

On  August  17th,  the  defendant,  upon  an  affidavit  that  the 
whole  cause  Df  action  did  not  arise  within  the  city  of  London, 
obtained  a  writ  of  prohibition  out  of  the  petty-bag  office  of  the 
High  Court  of  Chancery,  under  12  &  13  Vict.  ch.  109,  §  39  ; 
and    on    November    13th    the    plaintiff    obtained    an    order   of 


SEC.  u:]  TAVLOR   V.   JONES.  75 

Lush,  J.,  to  set  aside  the  prohibition,  on  the  ground  that  the 
order  for  the  goods  and  the  delivery  both  took  place  within  the 
jurisdiction  of  the  Mayor's  Court. 

Lumley  Smith  moved  to  set  aside  the  order  of  Lush,  J.,  and 
for  the  issue  of  a  prohibition  out  of  this  Court. 

£.  Clark,  contra. 

Lord  Coleridge,  C.J.  I  am  of  opinion  that  my  brother 
Lush  was  quite  right,  and  that  the  present  case  falls  within  the 
authorities  recently  discussed  and  considered  in  this  Court. 
The  order  for  the  goods  was  given  by  the  buyer  in  the  city,  by 
means  of  a  letter  posted  there  addressed  to  the  seller  who  re- 
sided in  Southwark.  There  was  no  letter  accepting  the  order, 
but  the  transaction  was  completed  by  the  seller  sending  his 
servant  with  the  goods  and  delivering  them  to  the  buyer  at  his 
place  of  business  within  the  city.  I  say  the  order  was  given  in 
the  city,  because  I  see  no  distinction  in  principle  (and  there  is 
none  in  any  of  the  authorities)  between  the  case  of  a  letter 
accepting  an  offer  and  a  letter  containing  an  order  for  goods. 
The  language  of  Lord  Justice  Mellish  in  Harris's  Case'  shows 
that  in  his  mind  there  is  no  such  distinction.  The  order,  then, 
having  been  given  in  the  city  where  the  letter  conveying  it  was 
posted,  the  contract  was  complete  when  the  goods  were  deliv- 
ered by  the  seller  to  the  buyer  in  the  city.  No  part  of  the 
cause  of  action,  therefore,  arose  out  of  the  jurisdiction  of  the 
Mayor's  Court.  Dunlop  v.  Higgins,^  in  the  House  of  Lords, 
binds  us  all.  The  decision  of  this  Court  in  Duncan  v.  Topham,^ 
and  that  of  Lord  Ellenborough  and  the  Court  of  Queen's  Bench 
in  Adams  v.  Lindsell,*  were  there  reviewed  and  the  principle 
adopted.  And  that  judgment  covers  to  the  full  the  ground 
upon  which  we  are  proceeding. 

Archibald,  J.  I  am  of  the  same  opinion.  The  order  was 
given  in  the  city  to  a  person  residing  out  of  the  city,  and  the 
goods  were  delivered  to  the  defendant  within  the  city.  Dun- 
lop V.  Higgins^  decides  that  a  letter  containing  an  offer  speaks 
from  the  time  when  and  the  place  where  it  is  posted.  It  was 
upon  that  principle  that  the  recent  case  of  Evans  v.  Nicholson' 

^  Law  Rep.  7  Ch.  587.  '  8  C.  B.  225.  *  i  H.  L.  C.  381. 

2iH.  L.  C.  38'.  "  I  B.  &  Aid.  681. 

*  The  following  is  the  report  of  Evans  v.  Nicholson  : 

This  was  a  case  in  which  a  writ  of  prohibition  was  moved  for  to  the 
Mayor's  Court,  in  an  action  which  had  proceeded  to  verdict  in  favor  of  the 
plaintiff,  on  the  ground  that  the  whole  cause  of  action  did  not  arise  within 
the  city. 

A  rule  fttst  was  on  a  former  day  obtained  by  Yeatman,  against  which 
Tennant  now  showed  cause. 

The  facts  were  that  the  defendant  had  gone  to  the  plaintiff's  shop  in  the 


-6  TAYLOR   V.   JONES.  [CHAP.  I. 

was  determined  in  this  Court.  Here  there  was  a  complete 
order  when  the  buyer  posted  the  letter  ordering  the  goods  ;  and 
the  acceptance  of  it  was  the  sending  the  goods  into  the  city  and 
there  delivering  them  to  the  buyer.  My  brother  Lush  was 
quite  right  in  setting  aside  the  writ  of  prohibition. 

city,  selected  some  goods  and  ordered  others  to  be  made  for  him,  and  had 
directed  that  all  should  be  sent  to  him  by  a  carrier  whom  he  named.  The 
defendant  reside.d  out  of  the  city,  and  the  carrier  in  question  also  carried 
on  his  business  outside  the  jurisdiction,  and  there  received  the  goods 
from  the  plaintiff,  and  delivered  them  in  due  course  at  the  defendant's  resi- 
dence. 

In  December,  1874,  the  plaintiff  sent  his  account  by  post,  and  the  de- 
fendant acknowledged  its  receipt,  regretting  that  he  could  not  then  send  a 
remittance. 

On  February  8th,  1875,  the  plaintiff,  by  letter,  requested  immediate  pay- 
ment of  the  account,  and  the  defendant  wrote  the  following  answer,  which, 
posted  out  of  the  city,  was  duly  received  by  the  plaintiff  at  his  shop  in 
Cheapside  : 

"Captain  Nicholson  is  in  receipt  of  Messrs.  Benetfink  &  Co.'s  account 
and  notice  of  the  8th  inst.,  respecting  the  amount  due,  ^^14  los.  ^d.,  and 
regrets  that  at  this  moment  he  is  much  pressed,  but  will  use  every  endeavor 
to  remit  them,  if  not  by  the  15th,  as  requested,  as  soon  after  as  possible." 

The  following  judgments  were  delivered  : 

LiNDLEY,  J.  I  am  of  opinion  that  this  rule  should  be  discharged.  The 
substantial  question  was,  whether  the  cause  of  action  arose  within  the  limits 
of  the  city,  so  as  to  give  the  Lord  Mayor's  Court  jurisdiction  to  try  it.  The 
facts  were,  that  a  claim  was  made  by  the  plaintiff  on  the  defendant  in  the 
suit  for  goods  sold  and  delivered  in  the  city,  but,  though  the  goods  were 
ordered  and  selected  there,  yet  all  of  them  were  by  the  plaintiff  delivered 
to  a  carrier  named  by  the  defendant,  that  carrier  being  one  who  carries  on 
his  business  outside  the  city,  and  the  goods  being  in  fact  delivered  to  him 
outside.  That  being  so,  it  could  not  be  successfully  contended  that  upon 
that  claim  all  the  cause  of  action  arose  within  the  city.  If  it  stopped  there 
I  should,  therefore,  be  of  opinion  that  the  rule  should  be  made  absolute. 
But  it  does  not ;  and  with  reference  to  a  claim  founded  upon  an  account 
stated,  it  seems  that  there  is  a  cause  of  action  within  the  jurisdiction  of  the 
Mayor's  Court.  Two  letters  have  been  read  to  us — they  are  written  by  the 
defendant  to  the  plaintiff — they  were  admitted  to  have  been  written  and 
posted  out  of  the  city,  and  received  in  it  by  course  of  post.  These  were  in 
answer  to  letters  written  by  the  plaintiff  to  the  defendant,  the  latter  having 
been  written  in,  and  received  out  of,  the  city.  First,  then,  do  those  letters 
amount  to  an  account  stated  or  not  ?  I  am  clearly  of  opinion  that  they  do. 
In  answer  to  a  claim,  they  contain  a  distinct  admission  by  the  defendant 
that  the  amount  claimed  was  due.  Then  comes  the  question,  which  is  the 
important  one  in  this  case,  where  and  when  that  account  is  to  be  treated  as 
having  been  stated.  Now,  on  the  authority  of  Dunlop  v.  Iliggins,  Adams  t'. 
Linsdell,  and  like  cases,  we  ought  to  hold  that  the  account  was  stated  at  the 
place  where  the  letter  containing  the  admission  was  posted,  and  at  the  time 
when  it  was  posted.  But  then  it  seems  also  consistent  with  Dunlop  z^. 
Higgins,  that  such  an  account  is  to  be  considered  as  a  continuing  statement 
of  account,  and  may,  therefore,  be  treated  as  an  account  stated  at  the  place 
where  and  the  time  when  the  letter  is  received.     Thus  we  have  an  account 


SEC.  ic]  TAYLOR   V.   JONES.  jy 

Amphlett,  B.  I  am  quite  of  the  same  opinion.  The  ques- 
tion is,  where  was  the  contract  in  this  case  made  ?     The  moment 

which  was  first  stated  out  of  the  city,  and  then  made  also  again  a  second 
time  with  the  plaintiff  in  the  jurisdiction.  1  see  nothing  inconsistent  with 
this  in  Dunlop  ?'.  Higgins,  but  rather  the  reverse,  and  think  the  rule  must 
be  discharged. 

Archibald,  J.  I  agree  entirely  with  my  brother  Lindley.  The  plairtiff 
based  his  case  on  two  grounds,  the  first  being  upon  a  claim  for  goods  sold 
and  delivered.  But,  with  reference  to  that  claim,  the  circumstances  .showed 
that  part,  certainly,  of  the  cause  of  action  took  place  out  of  the  jurisdiction, 
and  to  entitle  the  Mayor's  Court,  upon  a  prohibition  being  moved  to  issue 
to  it,  to  proceed  in  the  action,  the  whole  cause  must  arise  within  the  city. 
But  he  rested  his  case,  also,  upon  a  claim  on  an  account  stated.  A  letter, 
written  by  the  defendant  in  such  terms  as  to  be  an  absolute  admission  of 
the  debt  being  due,  was  posted  out  of  the  city  and  received  in  it.  The 
question  is,  where  is  the  account  stated  ?  Now,  as  soon  as  it  was  put  in  the 
post  by  the  defendant  there  was  an  account  stated  as  against  him,  as  is 
decided  by  the  cases  of  Dunlop  v.  Higgins  and  Duncan  7^.  Topham  {udi 
sup.).  But  it  was  a  continuing  statement,  and  I  see  no  difference  between 
an  acceptance  of  a  contract  and  a  statement  of  account,  so  far  as  the  prin- 
ciple is  concerned.  It  is  true  that  in  Dunlop  v.  Higgins  (iibi  step.)  it  was 
not  necessary  for  the  Court  there  to  consider  this  point,  but  it  is  quite  con- 
sistent with  the  judgment  on  the  point  decided,  that  the  acceptance  was  a 
continuing  acceptance.  This  case  of  a  statement  is  analogous,  I  think,  to 
that  of  an  acceptance,  for  the  transaction  shapes  itself  thus  :  When  a  letter 
is  written  by  the  creditor,  asking  the  debtor,  "  Do  you  owe  the  sum  men- 
tioned in  this  account  ?"  and  the  answer  is,  '"  Yes,"  then  I  think  the  answer 
is  continuous  until  it  reaches  the  person  to  whom  it  is  sent,  and  is  a  state- 
ment to  him  then  and  at  the  place  where  he  receives  it. 

Denman,  J.  I  agree  that  the  rule  in  this  case  cannot  be  made  absolute, 
on  the  ground  that,  in  the  action  for  goods  sold  and  delivered,  the  cause  of 
action  happened  in  the  city.  But  the  question  is,  whether  all  the  material 
facts  necessary  to  make  out  the  cause  of  action  occurred  in  the  city  in  re- 
spect of  the  other  claim — viz.,  that  on  account  stated.  I  should  agree  with 
the  rest  of  the  Court,  that  if  there  were  an  account  stated  out  of  the  city, 
there  was,  nevertheless,  also  an  account  stated  in  the  city,  \)\  reason  of  the 
continuous  statement  by  the  defendant  in  the  letter  of  February  loth,  1875. 
That  is  to  my  mind  ample  evidence  of  an  account  stated,  if  it  can  be  made 
out  by  the  mere  production  of  a  document.  But,  in  my  opinion,  it  cannot 
be  made  out  by  the  production  of  a  document  onlj-,  but  there  must  be  some 
evidence  that  it  was  stated  to  some  person.  I,  therefore,  holding  this  view 
as  to  what  is  necessary  to  be  proved,  have  very  considerable  doubt  if  there 
was  here  any  evidence  of  an  account  stated,  merely  to  be  derived  from  the 
letter  posted  by  the  defendant  out  of  the  citv.  But  then  I  must  say  that  in 
my  view  an  account  is  stated  where  the  person  to  whom  it  is  addressed  re- 
ceives the  letter,  and  this  letter  was,  though  written  without  by  the  defend- 
ant, received  within  the  jurisdiction  by  the  plaintiff.  I  therefore  doubt 
whether  we  ought  not  to  say  that  the  whole  evidence  was  evidence  of  an 
account  stated  in  the  city  ;  and  I  fail,  with  great  deference,  to  see  the  appli- 
cation of  cases  decided  on  the  acceptance  of  offers.  My  reason  is,  that 
there  it  is  the  final  act  which  makes  the  contract,  and  terms  having  been 
proposed,  a  party  who  posts  a  letter  signifying  his  assent,  then  accepts  the 


78  TAYLOR   V.   JONES.  [cHAP,  I. 

the  defendant's  letter  containing  the  order  was  put  into  the 
post  there  was  a  good  offer  made.     If  the  seller  had  posted  in 

contract  at  the  time  when  he  posts  his  letter.  But  that  has,  as  it  seems  to 
me,  a  very  feeble  analogy  to  cases  where  there  is  an  account  stated  upon 
which  an  action  of  asstunpsit  may  be  brought.  Therefore  it  is  that  I  feel 
more  strongly  satisfied  that  we  ought  to  decide  in  favor  of  the  plaintiff 
here,  than  if  I  agreed  with  the  rest  of  the  Court  in  basing  my  judgment  on 
the  same  grounds  as  those  upon  which  they  decide.  But  I  do  agree  that, 
if  the  letter  speaks  at  the  moment  it  is  posted,  it  is  in  the  nature  of  a  con- 
tinuous statement,  and  speaks  also  at  the  moment  when  it  is  received. 
Feeling,  however,  a  doubt  whether  the  application  of  the  rule  in  Dunlop  v. 
Higgins  is  so  wide  as  it  seems  to  the  rest  of  the  Court,  and  fearing  that  it 
might  do  some  injustice  if  so  applied,  I  have  expressed  the  grounds  upon 
which  I  base  my  decision  here,  and  how  I  agree  in  saying  that  tne  rule 
should  be  discharged. 

Lord  Coleridge,  C.J.  I  think  this  rule  should  be  discharged.  I  thought 
it  important  that  separate  judgments  should  be  delivered,  because,  though 
the  judgment  is  unanimous  m  effect,  I  agree  in  the  view  takea  by  my 
brothers  Archibald  and  Lindley,  and  assent  to  the  application  of  Dunlop  v. 
Higgins,  and  the  principle  contained  in  that  case  to  the  present  one.  Two 
points  were  made,  and  on  both  in  the  result  I  agree  with  the  rest  of  the 
Court.  In  one  contention  it  was  said  that  goods  were  bargained  and  sold, 
and  sold  and  delivered  in  the  city,  and  as  they  were  delivered  by  the  plain- 
tiff to  a  carrier  named  by  the  defendant,  they  were  for  the  purpose  of  the 
question  of  jurisdiction  delivered  as  soon  as  they  were  put  in  a  course  of 
delivery  in  the  city,  and  for  this  a  case  in  2  Campb.  p.  21  was  cited.  Lord 
Ellenborough's  authority  would  be  a  great  one,  were  the  cases  similar  ;  but 
his  dictum  is  not  applicable  to  the  facts  here,  for  here  the  goods  were  not 
delivered  to  ihe  carrier  till  they  were  out  of  the  jurisdiction,  and  the  goods 
were  not  at  defendant's,  but  at  plaintiff's  risk  till  they  reached  the  carrier 
named  by  the  defendants,  and  that  was  outside  the  jurisdiction.  The  sec- 
ond point,  however,  was  the  one  most  relied  on  at  the  trial,  and  properly 
so,  and  to-day  Mr.  Tennant  upon  it  argues  that  the  plaintiff  is  entitled  to 
recover  upon  a  claim  on  an  account  stated  in  the  city  ;  and  he  contends,  as 
he  must  do,  that  all  the  material  matters  necessary  to  support  the  cause  of 
action  took  place  in  the  jurisdiction.  The  facts  were,  that  a  letter  was  sent 
by  the  plaintiff  to  the  defendant  in  terms  which,  though  they  are  not  before 
us,  we  can  gather  from  the  reply.  We  may  take  it  that  it  was  a  request  for 
payment  of  an  account,  and  that  it  was  posted  in  the  jurisdiction.  This  is 
not,  however,  material,  becau.se  it  is  incorporated  with  and  admitted  by  two 
letters  of  the  defendant,  of  which  the  second  is  in  these  terms  :  "  Captain 
Nicholson  is  in  receipt  of  Messrs.  Benetfink  &  Co.'s  account  and  notice  of 
the  8th  inst.  respecting  the  amount  due,  ^  14  10s.  2,d.,  and  regrets  that  at 
this  moment  he  is  much  pressed,  but  will  use  every  endeavor  to  remit  them, 
if  not  by  the  15th,  as  requested,  as  soon  after  as  possible.  Copthorne,  Feb- 
ruary loth,  1875."  Now,  it  is  admitted  that  this  letter  was  posted  out  of 
the  jurisdiction,  but  it  is  equally  clear  that  it  was  received  by  the  plaintiff 
in  it  ;  and  the  question  is,  whether  the  statement  of  the  account,  which  it 
undoubtedly  is,  was  made  out  of  or  in  the  jurisdiction,  or  both.  According 
to  the  old  form  of  pleading,  the  count  was  always,  "  Whereas  the  defendant 
accounted  with  the  plaintiff,  and  upon  such  accounting  the  defendant  was 
found  in  arrear,  etc.,  whereupon  the  defendant  promised  to  pay  on  re- 


SEC.  U.]  TAYLOR   V.    JONES.  79 

Surrey  a  letter  accepting  the  offer,  I  should  have  thought  that 
the  contract  was  made  at  tiie  place  where  the  offer  was  accepted. 
But  there  was  no  letter  ;  the  goods  were  delivered  in  the  city. 

quest."  This  latter  part  was  a  matter  of  form,  and  lias  been  dropped  from 
the  declaration,  but  it  shows  what  was  the  condition  precedent  to  maintain- 
ing the  action — viz.,  the  promise  implied  in  the  statement  of  the  account. 
I  find  in  the  books  it  is  stated,  from  the  words  of  Lord  Abinger  in  Irving  v. 
Veitch  (3  M.  &  W.  107)  :  "  An  account  stated  is  an  admission  of  a  balance 
due  from  one  party  to  another,  and  the  count  lies  upon  an  absolute  acknowl- 
edgment made  by  the  defendant  to  the  plaintiff  of  a  debt  due  by  him  to  the 
plaintiff  and  payable  at  the  time  of  action  brought."  I  apprehend  that  an 
action  could  be  brought  from  the  moment  when  the  absolute  acknowledg- 
ment by  the  defendant  was  capable  of  proof,  and  that  moment  was  in  this 
case  when  he  wrote  the  letter  and  posted  it.  That  seems  to  follow  directly, 
from  the  cases  that  have  been  referred  to,  and,  therefore,  upon  the  authority 
of  those  cases,  I  am  of  opinion  that  here  there  was  evidence  of  an  account 
stated  sufficient  to  support  an  action,  if  brought  from  the  moment  when  the 
letter  was  posted.  I  cannot  for  myself  distinguish  the  principle  of  the  aris- 
ing of  a  cause  of  action  from  the  acceptance  of  a  contract,  and  it  was  de- 
cided in  Dunlop  7/.  Higgins  {lib i  sup.),  that  the  acceptance  is  complete  from 
the  moment  when  the  acceptor  writes  the  words,  "  accepting  the  terms  of 
the  contract."  It  has  been  pointed  out,  indeed,  and  with  perfect  truth, 
that  the  cases  referred  to  have  stopped  at  this  point  with  laying  down  as 
law  that  a  contract  is  complete  when  its  terms  are  accepted,  and  that  the 
acceptor  need  not  wait  till  the  other  party  receives  his  letter  notifying  his 
acceptance.  But,  then,  that  was  all  that  it  was  necessary  to  decide  in  all 
those  cases — Adams  v.  Lindsell,  Duncan  v.  Topham,  and  The  Imperial 
Land  Company  of  Marseilles  (Harris's  case)  (L.  Rep.  7  Ch.  App.  587)  ;  and 
the  courts  there  needed  noi;  to  go  on  and  say  whether  the  acceptance  was 
a  continuous  act  ;  still,  all  the  reasoning  in  the  cases  upon  which  the  judg- 
ments are  founded,  though  the  judgments  themselves  are  confined  to  the 
points  necessary  to  be  decided,  is  applicable  to  the  further  proposition  which 
we  are  now  considering — viz.,  that  the  acceptance  continues  to  be  an  act 
done  by  the  person  accepting  in  a  uniform  and  unbroken  course  of  dealing 
until  it  reaches  the  other  person  to  whom  it  is  notified.  And  in  my  opinion, 
although  complete  when  he  sends  it  off  by  post  and  made  then  as  against 
him,  it  is  none  the  less  made  also  when  it  reaches  the  mind  of  the  offerer 
by  reason  of  its  having  also  been  made  before.  This  leads  me  to  be  unable 
to  distinguish  an  acceptance  so  explained  from  a  statement  of  an  account  ; 
and  so,  to  apply  the  proposition  to  the  facts  in  this  case,  I  should  say  that, 
although  an  account  was  undoubtedly  stated  at  Copthorne,  wherever  that 
may  be,  it  was  none  the  less  stated  again  when  the  letter  containing  the 
admission  was  received  in  the  city.  Something  was  said  in  argument  about 
Edmunds  v.  Downes  {ubi  sup.),  to  suggest  that  this,  being  a  conditional 
promise  to  pay,  would  not  support  the  count  as  if  it  were  an  absolute 
acknowledgment  of  the  debt  ;  but  that  case  was  not  decided  on  this  point, 
but  merely  as  to  whether  certain  words  used  in  a  letter  were  or  were  not  a 
conditional  promise  ;  and  the  whole  of  the  Court  agrees  here  that  when  a 
man  says  he  has  received  an  account  of  an  amount  due,  specifying  the  sum, 
that  must  be  taken  to  be  the  amount  due  by  his  admission,  and  that  it  is  an 
admission  in  the  highest  possible  terms.  On  all  these  grounds,  I  think  the 
rule  must  be  discharged,  and  the  majority  of  the  Court,  in  discharging  the 


So  COWAN   V.    O'CONNOR.  [CHAP.  I. 

Every  part  of  the  cause  of  action,  therefore,  arose  within  the 
city. 

Rule  refused  with  costs.' 


COWAN  V.  O'CONNOR. 

In    the    Supreme    Court    of    Judicature,    Queen's    Bench 
Division,  March  22,  1888. 

\^Reported  in  Law  Reports,  20  Queen's  Bench  Division  640.] 

Application  referred  from  chambers  for  a  writ  of  prohibition 
to  the  corporation  of  London  and  to  the  plaintiff  in  an  action 
in  the  Mayor's  Court. 

The  declaration  in  the  action  alleged  that  the  defendant,  act- 
ing for  and  on  behalf  of  the  plaintiff  and  as  his  agent  in  wager- 
ing on  certain  horse  races,  received  to  the  use  of  the  plaintiff 
^356,  and  the  plaintiff  claimed  the  said  sum  on  an  account 
stated. 

It  appeared  from  affidavits  that  the  plaintiff  telegraphed  from 

rule,  base  their  judgment  on  the  authorit)^  of  the  great  cases  which  I  am 
unable  to  distinguish  in  principle  from  the  present. 

Rule  discharged. 

C.  Mossop  for  the  plaintiff. 

C.  B.  Hallward  for  the  defendant. — Ed. 

'  Action  in  the  Maj'or's  Court  for  the  price  of  goods  sold. 

It  appeared  by  the  plaintiff's  affidavit  that  part  of  the  goods  were  ordered 
by  a  letter,  written  and  posted  by  the  defendant  in  Liverpool,  and  received 
by  the  plaintiff  in  London,  where  he  resided  and  carried  on  business. 

The  defendant  having  obtained  a  rule  for  a  prohibition. 

Edivyn  Jones  showed  cause. 

Thrupp  in  support  of  the  rule. 

Denman,  J.  In  my  judgment  Evans  v.  Nicholson  (z^i^/jz/^.)  disposes  of 
the  present  question.  That  was  a  case  in  which  the  Court  of  Common 
Pleas  held  that  a  letter  posted  in  the  country,  though  it  might  have  been 
held  to  speak  when  it  was  posted,  did,  nevertheless,  also  amount  to  a  con- 
tinuous statement  of  account  at  the  place  where  it  was  received.  That 
seems  to  me  to  decide  the  present  case.  Then  it  is  argued  that  Taylor  v. 
Jones  {tidi  sup.)  is  a  decision  the  other  way.  It  must  be  rem^embered,  how- 
ever, that  Evans  v.  Nicholson  was  cited  in  that  very  case,  and  the  court 
intimated  that  they  did  not  intend  to  overrule  it.  Nor  was  it  necessary  to 
do  so,  because  they  did  not  hold  that  the  letter  did  not  speak  in  the  place 
where  it  was  received,  but  only  that  it  did  speak  in  the  place  where  it  was 
posted.  To  say  that  the  letter  completed  the  cause  of  action  in  the  place 
where  the  sender  posted  it  is  a  very  different  thing  from  saying  that,  if  a 
question  had  arisen  as  to  the  effect  of  the  writing  where  it  was  received,  the 
decision  of  the  Court  would  have  been  opposed  to  that  in  Evans  v.  Nichol- 
son.    I  think  we  are  bound  by  that  case,  and  that  part  of  the  cause  of  action 


SEC.  l<r.]  COWAN  V.   O'CONNOR.  8l 

a  post-office  in  Regent  Street,  outside  the  city,  to  the  defendant 
at  Ludgate  Circus,  within  the  cit}',  directions  to  put  certain 
sums  of  money  as  bets  on  certain  racehorses,  and  gave  an 
address  at  the  Pall  Mall  Club,  without  the  city.  The  defendant 
replied  by  telegram  from  Ludgate  Circus  to  the  plaintiff  at  the 
club,  "  You  are  on."  The  defendant  alleged  in  his  affidavit 
that  he  did  not  make  any  bet  with  any  other  person  in  conse- 
quence of  the  telegrams  on  behalf  of  the  plaintiff,  and  that  he 
had  not  received  any  money  in  respect  of  any  bets  made  on 
behalf  of  the  plaintiff  or  in  consequence  of  the  telegrams. 

Danckwerts  for  the  defendant. 

Fraticis  Watt  for  the  plaintiff. 

Manisty,  J.  This  is  an  application  for  a  prohibition  to  the 
Lord  Mayor's  Court  in  a  cause  where  the  amount  sued  for  ex- 
ceeds ;!^5o,  and  therefore  the  whole  cause  of  action  must  arise 
within  the  jurisdiction  of  the  city.  The  order  by  the  plaintiff 
to  the  defendant  was  sent  by  telegram,  and  to  my  mind  that  is 
exactly  the  same  as  if  it  was  a  letter  sent  through  the  post- 
office,  and  until  that  reached  the  defendant  he  had  no  authority. 
He  received  this  telegraphic  communication  in  the  city,  and 
answered  it  in  the  city.  It  is  said  that  there  is  a  fact  outside 
the  city  to  be  proved — viz.,  the  authority  of  the  telegraph  office 
to  send  this  telegram.  This  is  not  the  case.  All  that  need  be 
done  is  to  prove  the  receipt  by  the  defendant  of  the  order  from 
the  plaintiff  directly,  and  the  answer  directly.  I  am  clearly  of 
opinion  that  in  the  present  case  there  is  no  necessity  to  prove 
that  the  post-office  had  authority  to  send  the  telegram  ;  it  was 
merely  a  medium  of  communication  between  the  parties,  who 
are  in  the  same  position  as  if  they  met  together  and  made  a 
contract.  There  is  nothing  to  justify  us  in  granting  a  pro- 
hibition, 

Hawkins,  J.  I  am  of  the  same  opinion.  It  is  said  that  the 
Lord  Mayor's  Court  has  no  jurisdiction  because  the  telegram 

in  the  present  case  must  be  held  to  have  arisen  within  the  city  of  London. 
The  rule  therefore  must  be  discharged. 

LiNDLEY,  J.  I  am  of  the  same  opinion.  I  do  not  see  axvy  inconsistency 
between  the  two  cases  that  have  been  cited.  It  seems  to  me  to  have  been 
properly  decided  that  a  letter  posted  in  one  place  and  received  in  another 
has  a  continuous  effect,  and  speaks  in  the  place  where  it  is  received.  That 
view  is  not  only  consistent  with  Evans  v.  Nicholson,  but  was  adopted  and 
approved  by  the  Court  for  the  Consideration  of  Crown  Cases  Reserved  in 
Reg  V.  Rogers  {ubi  stip.).  I  think  the  true  construction  of  both  cases  is, 
that  a  letter  is  a  continuing  offer,  or  order,  or  statement  by  the  sender, 
which  takes  effect  in  the  place  where  the  person  to  whom  it  is  sent  receives 
it.     The  rule  must  be  discharged. 

Rule  discharged  with  costs. — Bennett  v.  Cosgriff ,  38  Law  Times  Reports. 
New  Series,  177. — Ed, 


82  FELTHOUSE   V.    BINDLEY.  [CHAP.  I. 

by  which  the  directions  to  the  defendant  were  given  was  dis- 
patched from  Regent  Street,  although  delivered  in  the  city, 
and  therefore  that  part  of  the  cause  of  action  arose  out  of  the 
city.  I  am  not  of  that  opinion.  I  think  that  where,  as  here, 
a  person  opens  a  correspondence  and  initiates  a  transaction  by 
telegram  he  must  be  treated  as  though  he  were,  through  it, 
speaking  to  the  person  to  whom  such  telegram  is  directed,  at 
the  place  to  which  he  directs  it  to  be  sent,  and  where  he  intends 
it  to  be  delivered  ;  and  if  he  desires  a  reply  by  telegram,  such 
reply  must  be  considered  as  given  to  him  at  the  telegraph  office 
from  whence  such  reply  is  dispatched.  A  contract  was  created 
by  two  telegrams  in  the  present  case,  and  I  am  clearly  of  opin- 
ion that  it  was  a  contract  in  the  city.  But  it  is  said  that  the 
authority  to  the  telegraph  clerk  to  communicate  the  telegram 
was  an  authority  given  in  Regent  Street.  That  may  be.  But 
it  is  perfectly  certain  that  the  authority  given  in  Regent  Street 
was  an  authority  to  do  something — namely,  deliver  the  mes- 
sage, in  the  city,  and  nowhere  else.  The  authority  to  transmit 
the  message,  when  established,  is  merely  evidence  which  goes 
to  fix  the  sender  with  the  responsibility  of  sending  it  ;  but  it  is 
no  part  of  the  cause  of  action.  If  this  objection  were  to  pre- 
vail, no  manufacturer  in  the  country  who  sends  his  traveller  to 
receive  orders  in  the  city  to  supply  goods  could  sue  in  the 
Mayor's  Court  for  the  price,  although  the  contract  was  made 
by  the  traveller  and  the  goods  delivered  in  the  city.  We  have 
nothing  to  do  with  the  question  whether  the  contract  was  that 
alleged,  which,  when  the  case  goes  to  trial  it  will  be  for  the 
tribunal  before  which  it  is  to  be  tried  to  decide.  Then  it  is 
said  there  is  another  element  of  consideration — viz.,  the  receipt 
of  the  money.  Of  course,  the  plaintiff  will  have  to  prove  that 
it  was  received,  or  he  will  fail  on  the  merits. 
Application  refused. 

PAUL    FELTHOUSE  z;.   BINDLEY. 

In  the  Court  of  Common  Pleas,  July  8,  1862. 

[Reported  m  11  Commo?t  Bench,  New  Series,  868.] 

This  was  an  action  for  the  conversion  of  a  horse.  Pleas,  not 
guilty,  and  not  possessed. 

The  cause  was  tried  before  Keating,  J.,  at  the  last  Summer 
Assizes  at  Stafford,  when  the  following  facts  appeared  in  evi- 
dence :  The  plaintiff  was  a  builder  residing  in  London.  The 
defendant  was  an  auctioneer  residing  at  Tamworth.  Toward 
the  close  of  the  year  i860  John   Felthouse,   a  nephew  of  the 


SEC.  ic]  FELTIIOUSE   V.    BINDLEY,  83 

plaintiff,  being  about  to  sel'  his  farming  stock  by  auction,  a 
conversation  took  place  between  the  uncle  and  nephew  respect- 
ing the  purchase  by  the  former  of  a  horse  of  the  latter  ;  and,  on 
January  ist,  1861,  John  Felthouse  wrote  to  his  uncle  as  follows  : 

"  Bangley,  January  i,  1861. 
"  Dear  Sir  :  I  saw  my  father  on  Saturday.  He  told  me  that 
you  considered  you  had  bought  the  horse  for;^3o.  If  so,  you 
are  laboring  under  a  mistake,  for  30  guineas  was  the  price  I  put 
upon  him,  and  you  never  heard  me  say  less.  When  you  said 
you  would  have  him,  I  considered  you  were  aware  of  the  price, 
as  I  would  not  take  less.  John  Felthouse." 

The  plaintiff  on  the  following  day  replied  as  follows  : 

"  London,  January  2,  1862. 
"  Dear  Nephew  :  Your  price,  I  admit,  was  30  guineas.  I 
offered  ;£s° — never  offered  more,  and  you  said  the  horse  was 
mine.  However,  as  there  may  be  a  mistake  about  him,  I  will 
split  the  difference — -^30  155. — I  paying  all  expenses  from  Tam- 
worth.  You  can  send  him  at  your  convenience,  between  now 
and  March  25th.  If  I  hear  no  more  about  him,  I  consider  the 
horse  mine  at ^30  155.  Paul  Felthouse." 

To  this  letter  the  nephew  sent  no  reply,  and  on  February  25tli 
the  sale  took  place,  the  horse  in  question  being  sold  with  the 
rest  of  the  stock,  and  fetching  ;£s3y  which  sum  was  handed 
over  to  John  Felthouse.  On  the  following  day  the  defendant 
(the  auctioneer),  being  apprised  of  the  mistake,  wrote  to  the 
plaintiff  as  follows  : 

"  Tamworth,  February  26,  iS6r. 

"  Dear  Sir  :  I  am  sorry  I  am  obliged  to  acknowledge  myself 
forgetful  in  the  matter  of  one  of  Mr.  John  Felthouse's  horses. 
Instructions  were  given  me  to  reserve  the  horse,  but  the  lapse 
of  time,  and  a  multiplicity  of  business  pressing  upon  me,  caused 
me  to  forget  my  previous  promise.  I  hope  you  will  not  experi- 
ence any  great  inconvenience.  I  will  do  all  1  can  to  get  the 
horse  again,  but  shall  know  on  Saturday  if  I  have  succeeded. 

"  William  Bindley." 

On  February  27th  John  Felthouse  wrote  to  the  plaintiff  as 
follows  : 

"  Bangley,  February  27,  1861. 

"  My  Dear  Uncle  :  My  sale  took  place  on  Monday  last,  and 
we  were  very  much  annoyed  in  one  instance.  When  Mr.  Bind- 
ley came  over  to  take  an   inventory  of  the  stock,  I  said  that 


84  FELTIIOUSE   V.    BINDLEY.  [CHAP.  I. 

horse  (meaning  the  one  I  sold  to  you)  is  sold.  Mr.  B.  said  it 
would  be  better  to  put  it  in  the  sale,  and  he  would  buy  it  in 
without  any  charge.  Father  stood  by  while  he  was  running  it 
up,  but  had  no  idea  but  he  was  doing  it  for  the  good  of  the 
sale,  and  according  to  his  previous  arrangement,  until  he  heard 
him  call  out  Mr.  Glover.  He  then  went  to  Mr.  B.  and  said 
that  horse  was  not  to  be  sold.  He  exclaimed  he  had  quite  for- 
gotten, but  would  see  Mr.  Glover  and  try  to  recover  it,  and 
says  he  will  give  ^£5  to  the  gentleman  if  he  will  give  it  up  ;  but 
we  fear  it  doubtful.  I  have  kept  one  horse  for  my  own  accom- 
modation while  we  remain  at  Bangley,  and  if  you  like  to  have  it 
for  a  few  months,  say  five  or  six,  you  are  welcome  to  it,  free  of 
any  charge,  except  the  expenses  of  travelling,  and  if  at  the  end 
of  that  time  you  like  to  return  him,  you  can,  or  you  can  keep 
him  and  let  me  know  what  you  think  he  is  worth.  I  am  very 
sorry  that  such  has  happened,  but  hope  we  shall  make  matters 
all  right,  and  would  have  given  ^£5  rather  than  that  horse 
should  have  been  given  up.  John  Felthouse." 

On  the  part  of  the  defendant  it  was  submitted  that  the  letter 
of  February  27th',  1861,  was  not  admissible  in  evidence.  The 
learned  judge,  however,  overruled  the  objection.  It  was  then 
submitted  that  the  property  in  the  horse  was  not  vested  in  the 
plaintiff  at  the  time  of  the  sale  by  the  defendant. 

A  verdict  was  found  for  the  plaintiff,  damages  ;£s3i  leave 
being  reserved  to  the  defendant  to  move  to  enter  a  nonsuit,  if 
the  Court  should  be,  of  opinion  that  the  objection  was  well 
founded. 

Doivdeswell,  in  Michaelmas  Term  last,  accordingly  obtained  a 
rule  nisi. 

Powell  showed  cause. 

Montague  Smith,  Q.C.,  and  Dowdeswell  in  support  of  the  rule, 

WiLLES,  J.  I  am  of  opinion  that  the  rule  to  enter  a  nonsuit 
should  be  made  absolute.  The  horse  in  question  had  belonged 
to  the  plaintiff's  nephew,  John  Felthouse.  In  December,  i860, 
a  conversation  took  place  between  the  plaintiff  and  his  nephew 
relative  to  the  purchase  of  the  horse  by  the  former.  The  uncle 
seems  to  have  thought  that  he  had  on  that  occasion  bought  the 
horse  forp^3o,  the  nephew  that  he  had  sold  it  for  30  guineas, 
but  there  was  clearly  no  complete  bargain  at  that  time.  On 
January  ist,  1861,  the  nephew  writes  :  "  I  saw  my  father  on 
Saturday.  He  told  me  that  you  considered  you  had  bought 
the  horse  for  ^30.  If  so,  you  are  laboring  under  a  mistake,  for 
30  guineas  was  the  price  I  put  upon  him,  and  you  never  heard 
me  say  less.     When  you  said  you  would  have  him,  I  considered 


SEC.  ic]  FELTIIOUSE    i:    lilXDLEV.  S5 

you  were  aware  of  the  price."  To  this  the  uncle  replies  on  the 
following  day  :  "  Your  price,  I  admit,  was  30  guineas.  I  offered 
;;^3o  ;  never  offered  more,  and  you  said  the  horse  was  mine. 
However,  as  there  may  be  a  mistake  about  him,  I  will  split  the 
difference.  If  I  hear  no  more  about  him,  I  consider  the  horse 
mine  at;^3o  15^^."  It  is  clear  that  there  was  no  complete  bar- 
gain on  January  2d,  and  it  is  also  clear  that  the  uncle  had  no 
right  to  impose  upon  the  nephew  a  sale  of  his  horse  for  ^30  15^. 
unless  he  chose  to  comply  with  the  condition  of  writing  to 
repudiate  the  offer.  The  nephew  might,  no  doubt,  have  bound 
his  uncle  to  the  bargain  by  writing  to  him,  the  uncle  might  also 
have  retracted  his  offer  at  any  time  before  acceptance.  It  stood 
an  open  offer,  and  so  things  remained  until  February  25th,  when 
the  nephew  was  about  to  sell  his  farming  stock  by  auction. 
The  horse  in  question  being  catalogued  with  the  rest  of  the 
stock,  the  auctioneer  (the  defendant)  was  told  that  it  was 
already  sold.  It  is  clear,  therefore,  that  the  nephew  in  his  own 
mind  intended  his  uncle  to  have  the  horse  at  the  price  which  he 
(the  uncle)  had  named — ;£3o  i^s. — but  he  had  not  communi- 
cated such  his  intention  to  his  uncle,  or  done  anything  to  bind 
himself.  Nothing,  therefore,  had  been  done  to  vest  the  prop- 
erty in  the  horse  in  the  plaintiff  down  to  February  25th,  when 
the  horse  was  sold  by  the  defendant.  It  appears  to  me  that, 
independently  of  the  subsequent  letters,  there  had  been  no 
bargain  to  pass  the  property  in  the  horse  to  the  plaintiff,  and 
therefore  that  he  had  no  right  to  complain  of  the  sale.  Then 
what  is  the  effect  of  the  subsequent  correspondence  ?  The 
letter  of  the  auctioneer  amounts  to  nothing.  The  more  impor- 
tant letter  is  that  of  the  nephew,  of  February  27th,  which  is 
relied  on  as  showing  that  he  intended  to  accept  and  did  accept 
tlie  terms  offered  by  his  uncle's  letter  of  January  2d.  That 
letter,  however,  may  be  treated  either  as  an  acceptance  then  for 
the  first  time  made  by  him,  or  as  a  memorandum  of  a  bargain 
complete  before  February  25th,  sufficient  within  the  Statute  of 
Frauds.  It  seems  to  me  that  the  former  is  the  more  likely  con- 
struction, and  if  so,  it  is  clear  that  the  plaintiff  cannot  recover. 
But,  assuming  that  there  had  been  a  complete  parol  bargain 
before  February  25th,  and  that  the  letter  of  the  27th  was  a  mere 
expression  of  the  terms  of  that  prior  bargain,  and  not  a  bargain 
then  for  the  first  time  concluded,  it  would  be  directly  contrary 
to  the  decision  of  the  Court  of  Exchequer  in  Stockdale  v.  Dun- 
lop,  6  M.  &  W.  224,  to  hold  that  that  acceptance  had  relation 
back  to  the  previous  offer  so  as  to  bind  third  persons  in  respect 
of  a  dealing  with  the  property  by  them  in  the  interim.  In  that 
case  Messrs.  H.   &  Co.,  being  the  owners  of  two  ships,  called 


86  DAY   1'.   CATON.  [CHAP.  1. 

the  Antelope  and  the  Maria,  trading  to  the  coast  of  Africa,  and 
which  were  then  expected  to  arrive  in  Liverpool  with  cargoes 
of  palm-oil,  agreed  verbally  to  sell  the  plaintiffs  two  hundred 
tons  of  oil — one  hundred  tons  to  arrive  by  the  Antelope  and  one 
hundred  tons  by  the  Maria.  The  Antelope  did  afterward  arrive 
with  one  hundred  tons  of  oil  on  board,  which  were  delivered  by 
H.  &  Co.  to  the  plaintiffs.  The  Maria,  having  fifty  tons  of  oil 
on  board,  was  lost  by  perils  of  the  sea.  The  plaintiffs  having 
insured  the  oil  on  board  the  Maria,  together  with  their  expected 
profits  thereon,  it  was  held  that  they  had  no  insurable  interest, 
as  the  contract  they  had  entered  into  with  H.  &  Co.,  being 
verbal  only,  was  incapable  of  being  enforced. 

BvLES,  J.  I  am  of  the  same  opinion,  and  have  nothing  to 
add  to  what  has  fallen  from  my  brother  Willes. 

Keating,  J.  I  am  of  the  same  opinion.  Had  the  question 
arisen  as  between  the  uncle  and  the  nephew,  there  would  prob- 
ably have  been  some  difficulty.  But  as  between  the  uncle  and 
the  auctioneer,  the  only  question  we  have  to  consider  is,  whether 
the  horse  was  the  property  of  the  plaintiff  at  the  time  of  the 
sale  on  February  25th.  It  seems  to  me  that  nothing  had  been 
done  at  that  time  to  pass  the  property  out  of  the  nephew  and 
vest  it  in  the  plaintiff.  A  proposal  had  been  mad&j  but  th,ere 
had  before  that  day  been  no  acceptance  binding  the  nephew. 

Rule  absolute. 


JOHN    G.  DAY  V.  ASA    H.  CATON. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
February  29,  1876. 

\Reported  i)t  119  Massachusetts  Reports  5 13.  J 

Contract  to  recover  the  value  of  one  half  of  a  brick  party 
wall  built  by  the  plaintiff  upon  and  between  the  adjoining 
estates,  27  and  29  Greenwich  Park,  Boston. 

At  the  trial  in  the  Superior  Court,  before  Allen,  J.,  it  ap- 
peared that,  in  1871,  the  plaintiff,  having  an  equitable  interest 
in  lot  29,  built  the  wall  in  question,  placing  one  half  of  it  on  the 
vacant  lot  27,  in  which  the  defendant  then  had  an  equitable 
interest.  The  plaintiff  testified  that  there  was  an  express  agree- 
ment on  the  defendant's  part  to  pay  him  one  half  the  value  of 
the  wall  when  the  defendant  should  use  it  in  building  upon 
lot  27.     The  defendant  denied  this,  and  testified  that  he  never 


SEC.  ic]  DAY   V.   CATON.  87 

had  any  conversation  with  the  plaintiff  about  the  wall  ;  ami 
there  was  no  other  direct  testimony  on  this  point. 

The  defendant  requested  the  judge  to  rule  that,  "  i.  The  plain- 
tiff can  recover  in  this  case  only  upon  an  express  agreement. 

"  2.  If  the  jury  find  there  was  no  express  agreement  about  the 
wall,  but  the  defendant  knew  that  the  plaintiff  was  building 
upon  land  in  which  the  defendant  had  an  equitable  interest,  the 
defendant's  rights  would  not  be  affected  by  such  knowledge, 
and  his  silence  and  subsequent  use  of  the  wall  would  raise  no 
implied  promise  to  pay  anything  for  the  wall." 

The  judge  refused  so  to  rule,  but  instructed  the  jury  a^  fol- 
lows :  "A  promise  would  not  be  implied  from  the  fact  that  the 
plaintiff,  with  the  defendant's  knowledge,  built  the  wall  and 
the  defendant  used  it,  but  it  might  be  implied  from  the  conduct 
of  the  parties.  If  the  jury  find  that  the  plaintiff  undertook  and 
completed  the  building  of  the  wall  with  the  expectation  that 
the  defendant  would  pay  him  for  it,  and  the  defendant  had 
reason  to  know  that  the  plaintiff  was  so  acting  with  that  expec- 
tation, and  allowed  him  so  to  act  without  objection,  then  the 
jury  might  infer  a  promise  on  the  part  of  the  defendant  to  pay 
the  plaintiff." 

The  jury  found  for  the  plaintiff,  and  the  defendant  alleged 
exceptions. 

H.  D.  Hyde  &'  M.  F.  Dickinson,  Jr.,  for  the  defendant. 

F.   W.  Kittredge  for  the  plaintiff. 

Devens,  J.  The  ruling  that  a  promise  to  pay  for  the  wall 
"would  not  be  implied  from  the  fact  that  the  plaintiff,  with  the 
defendant's  knowledge,  built  the  wall,  and  that  the  defendant 
used  it,  was  substantially  in  accordance  with  the  request  of  the 
defendant,  and  is  conceded  to  have  been  correct.  Chit.  Con. 
(nth  Am.  ed.)  86.  Wells  v.  Banister,  4  Mass.  514  ;  Knowlton  (•. 
Plantation  No.  4,  14  Maine,  20  ;  Davis  v.  School  District  in 
Bradford,  24  Maine,  349. 

The  plaintiff,  however,  contends  that  the  presiding  judge 
incorrectly  ruled  that  such  promise  might  be  inferred  from  the 
fact  that  the  plaintiff  undertook  and  completed  the  building  of 
the  wall  with  the  expectation  that  the  defendant  would  pay  him 
for  it,  the  defendant  having  reason  to  know  that  the  plaintiff 
was  acting  with  that  expectation,  and  allowed  him  thus  to  act 
without  objection. 

The  fact  that  the  plaintiff  expected  to  be  paid  for  the  work 
would  certainly  not  be  sufficient  of  itself  to  establish  the  exist- 
ence of  a  contract,  when  the  question  between  the  parties  was 
whether  one  was  made.  Taft  v.  Dickinson,  6  Allen,  553.  It 
must  be  shown   that,  in  some  manner,  the  party  souglit  to  be 


88  DAY  V.   CATON.  [cHAP.  I. 

charged  assented  to  it.  If  a  party,  however,  voluntarily  accepts 
and  avails  himself  of  valuable  services  rendered  for  his  benefit, 
when  he  has  the  option  whether  to  accept  or  reject  them,  even 
if  there  is  no  distinct  proof  that  they  were  rendered  by  his 
authority  or  request,  a  promise  to  pay  for  them  may  be  in- 
ferred. His  knoAvledge  that  they  were  valuable,  and  his  exer- 
cise of  the  option  to  avail  himself  of  them,  justify  this  inference. 
Abbot  z'.  Hermon,  7  Greenl.  118  ;  Hayden  v.  Madison,  7  Greenl. 
76.  And  when  one  stands  by  in  silence  and  sees  valuable  ser- 
vices rendered  upon  his  real  estate  by  the  erection  of  a  structure 
(of  which  he  must  necessarily  avail  himself  afterward  in  his 
proper  use  thereof),  such  silence,  accompanied  with  the  knowl- 
edge on  his  part  that  the  party  rendering  the  services  expects 
payment  therefor,  may  fairly  be  treated  as  evidence  of  an  accept- 
ance of  it,  and  as  tending  to  show  an  agreement  to  pay  for  it. 

The  maxim,  Qui  facet  consentire  videtur,  is  to  be  construed  in- 
deed as  applying  only  to  those  cases  where  the  circumstances 
are  such  that  a  party  is  fairly  called  upon  either  to  deny  or 
admit  his  liability.  But  if  silence  may  be  interpreted  as  assent 
where  a  proposition  is  made  to  one  which  he  is  bound  to  deny 
or  admit,  so  also  it  may  be  if  he  is  silent  in  the  face  of  facts 
which  fairly  call  upon  him  to  speak.  Lamb  v.  Bunce,  4  M.  &  S. 
275  ;  Conner  27.  Hackley,  2  Met.  613  ;  Preston  v.  American  Linen 
Co.  afite,  400. 

If  a  person  saw  day  after  day  a  laborer  at  work  in  his  field 
doing  services,  which  must  of  necessity  inure  to  his  benefit, 
knowing  that  the  laborer  expected  pay  for  his  work,  when  it 
was  perfectly  easy  to  notify  him  if  his  services  were  not  wanted, 
even  if  a  request  were  not  expressly  proved,  such  a  request, 
either  previous  to  or  contemporaneous  with  the  performance  of 
the  services,  might  fairly  be  inferred.  But  if  the  fact  was 
merely  brought  to  his  attention  upon  a  single  occasion  and 
casually,  if  he  had  little  opportunity  to  notify  the  other  that  he 
did  not  desire  the  work  and  should  not  pay  for  it,  or  could  only 
do  so  at  the  expense  of  much  time  and  trouble,  the  same  infer- 
ence might  not  be  made.  The  circumstances  of  each  case 
would  necessarily  determine  whether  silence  with  a  knowledge 
that  another  was  doing  valuable  work  for  his  benefit,  and  with 
the  expectation  of  payment,  indicated  that  consent  which  would 
give  rise  to  the  inference  of  a  contract.  The  question  would 
be  one  for  the  jury,  and  to  them  it  was  properly  submitted  in 
the  case  before  us  by  the  presiding  judge. 

Exceptions  overruled. 


SEC. 


I<r.]  HOBBS   V.    MASSASOIT   Willi'   CO.  89 


CHARLES  A.   HOBBS  v.   MASSASOIT  WHIP  COMPANY. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
March   i,  1893. 

^Reported  in  15S  Massachusetts  Reports  194.J 

Contract,  upon  an  account  annexed  for  one  hundred  and 
eight  dollars  and  fifty  cents,  for  2350  eelskins  sold  by  the  plain- 
tiff to  the  defendant.  At  the  trial  in  the  Superior  Court,  before 
Hammond,  J.,  it  appeared  in  evidence  that  the  plaintiff  lived  in 
Saugus,  and  the  defendant  had  its  usual  place  of  business  in 
Westfield,  and  was  engaged  in  the  manufacture  of  whips. 

The  plaintiff  testified  that  he  delivered  the  skins  in  question 
to  one  Harding  of  Lynn,  on  February  i8th,  1890,  who  upon  the 
same  or  the  following  day  forwarded  them  to  the  defendant  ; 
that  the  skins  were  in  good  condition  when  received  by  Hard- 
ing, 2050  of  them  being  over  twenty-seven  inches  in  length 
each,  and  the  balance  over  twenty-two  inches  in  length  each  ; 
that  he  had  forwarded  eelskins  to  the  defendant  through  said 
Harding  several  different  times  in  1888  and  1889,  and  received 
payment  therefor  from  the  defendant  ;  that  he  knew  the  de- 
fendant used  such  skins  in  its  business  in  the  manufacture  of 
whips  ;  that  the  skins  sent  on  February  i8th,  1890,  were  for 
such  use  ;  that  he  understood  that  all  skins  sent  by  him  were 
to  be  in  good  condition  and  over  twenty-two  inches  in  length, 
and  that  the  defendant  had  never  ordered  of  him  skins  less  than 
twenty-two  inches  in  length  ;  and  that  Harding  took  charge  of 
the  skins  for  him  and  that  he  received  orders  through  Harding, 
but  that  Harding  was  not  his  agent. 

Harding,  who  was  called  as  a  witness,  testified  that  he  had 
some  correspondence  for  the  plaintiff  with  the  defendant  in  ref- 
erence to  skins  ;  that  he  acted  for  the  plaintiff  in  forwarding 
skins  to  the  defendant,  and  in  receiving  pay  therefor,  and  acted 
for  the  plaintiff  in  giving  him  any  information,  order,  or  notice 
which  he  received  from  the  defendant  in  reference  to  skins  sent 
or  to  be  sent. 

The  defendant  contended  that  Harding  acted  as  the  plaintiff's 
agent.  The  plaintiff  contended  that  Harding  acted  as  the  agent 
of  the  defendant,  and  not  as  his  agent.  On  this  point  the  evi- 
dence was  conflicting,  and  the  question  was  submitted  to  the 
jury,  upon  instructions  not  excepted  to. 

Four  letters  were  offered  in  evidence,  three  of  which,  dated 
in  1889,  showed  transactions  between  the  plaintiff  and  the  de- 


go  HOBBS   V.    MASSASOIT   WHIP   CO.  [CHAP,  I. 

fendant.  and  the  fourth  of  which,  dated  Lynn,  February  i8th. 
1890,  signed  by  Harding  and  addressed  to  the  defendant,  was 
as  follows  :  "  We  send  you  to-day,  for  Mr.  Hobbs,  2050  eelskins 
at  .05  and  300  at  .02." 

One  Pirnie,  president  of  the  defendant  corporation,  called  by 
the  defendant,  testified  that  before  February  i8th,  1890,  the 
plaintiff  had  sent  eelskins  four  or  five  times  by  Harding  to  the 
defendant,  which  were  received  and  paid  for  by  the  defendant  ; 
that  the  defendant  agreed  to  pay  five  cents  each  for  eelksins 
over  twenty-seven  inches  in  length,  and  two  cents  each  for  eel- 
skins over  twenty-two  inches  in  length  and  less  than  twenty- 
seven  inches,  suitable  for  use  in  the  defendant's  business  ;  that 
Harding  was  not  acting  for  the  defendant,  but  for  the  plaintiff  ; 
that  the  defendant  never  ordered  the  skins  in  question,  and  did 
not  purchase  them  in  any  manner,  and  that  no  officer  or  em- 
ploye of  the  corporation  except  himself  had  authority  to  order 
or  purchase  skins,  and  that  he  never  ordered  or  purchased  those 
in  question  ;  that  skins  came  from  Hobbs  through  Harding 
on  February  19th  or  20th,  1890,  and  were  at  once  examined  by 
him,  and  found  to  be  less  than  twenty-two  inches  in  length,  and 
found  to  be  unfit  for  use,  and  that  he  notified  Harding  at  once, 
in  w^riting,  that  the  skins  were  unfit  for  use,  and  that  they  we^-e 
held  subject  to  the  plaintiff's  order  ;  that  the  skins  remained 
some  months  at  the  defendant's  place  of  business  in  Westfield, 
and  were  then  destroyed  ;  and  that  the  defendant  received  no 
other  skins  in  the  month  of  February  from  the  plaintiff  or  from 
any  other  person. 

One  Case,  the  defendant's  shipping  clerk,  and  one  Gowdy, 
the  defendant's  treasurer,  testified  that  the  skins  sent  on  Feb- 
ruary i8th,  1890,  and  received  February  19th  or  20th,  1890, 
were  examined  by  them,  and  were  very  short,  in  very  bad  shape, 
not  fit  for  use,  and  worthless. 

The  judge  instructed  the  jury  that  the  plaintiff  could  not 
recover  for  eelskins  less  than  twenty-two  inches  in  length,  nor 
for  any  of  the  eelskins  if  they  were  in  the  condition  describea 
by  the  witnesses  for  the  defendant. 

The  plaintiff  denied  that  he  received  any  notice  from  the  de- 
fendant that  the  skins  were  not  suitable  for  use,  or  that  they 
were  held  subject  to  his  order. 

The  judge,  among  other  instructions,  also  gave  the  follow- 
ing :  "  Whether  there  was  any  prior  contract  or  not,  if  skins 
are  sent  to  them  (the  defendants)  and  they  see  fit,  whether  they 
have  agreed  to  take  them  or  not,  to  lie  back  and  say  nothing, 
having  reason  to  suppose  that  the  man  who  has  sent  them  be- 
lieves that  they  are  taking  them,  since  they  say  nothing  about 


SEC.  ic]  HOBBS   7'.    MASSASOIT   WHIP   CO.  gl 

it,  then,  if  they  fail  to  notify,  you  would  be  warranted  in  find- 
ing for  the  plaintiff,  on  that  state  of  things." 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defend- 
ant alleged  exceptions. 

J^.  Z.  Evans  for  the  defendant. 

y.  E.  Hatily  6-'  J.  F.  Libby  for  the  plaintiff. 

Holmes,  J.  This  is  an  action  for  the  price  of  eelskins  sent 
by  the  plaintiff  to  the  defendant,  and  kept  by  the  defendant 
some  months,  until  they  were  destroyed.  It  must  be  taken  that 
the  plaintiff  received  no  notice  that  the  defendants  declined  to 
accept  the  skins.  The  case  comes  before  us  on  exceptions  to 
an  instruction  to  the  jury,  that,  whether  there  was  any  prior 
contract  or  not,  if  skins  are  sent  to  the  defendant,  and  it  sees 
fit,  whether  it  has  agreed  to  take  them  or  not,  to  lie  back,  and 
to  say  nothing,  having  reason  to  suppose  that  the  man  who  has 
sent  them  believes  tliat  it  is  taking  them,  since  it  says  nothing 
about  it,  then,  if  it  fails  to  notify,  the  jury  would  be  warranted 
in  finding  for  the  plaintiff. 

Standing  alone,  and  unexplained,  this  proposition  might  seem 
to  imply  that  one  stranger  may  impose  a  duty  upon  another, 
and  make  him  a  purchaser,  in  spite  of  himself,  by  sending  goods 
to  him,  unless  he  will  take  the  trouble,  and  be  at  the  expense, 
of  notifying  the  sender  that  he  will  not  buy.  The  case  was 
argued  for  the  defendant  on  that  interpretation.  But,  in  view 
of  the  evidence,  we  do  not  understand  that  to  have  been  the 
meaning  of  the  judge,  and  we  do  not  think  that  the  jury  can 
have  understood  that  to  have  been  his  meaning.  The  plaintiff 
was  not  a  stranger  to  the  defendant,  even  if  there  was  no  con- 
tract between  them.  He  had  sent  eelskins  in  the  same  way 
four  or  five  times  before,  and  they  had  been  accepted  and  paid 
for.  On  the  defendant's  testimony,  it  is  fair  to  assume  that,  if 
it  had  admitted  the  eelskins  to  be  over  twenty-two  inches  in 
length,  and  fit  for  its  business,  as  the  plaintiff  testified,  and  the 
jury  found  that  they  were,  it  would  have  accepted  them  ;  that 
this  was  understood  by  the  plaintiff  ;  and,  indeed,  that  there 
was  a  standing  offer  to  him  for  such  skins.  In  such  a  condition 
of  things,  the  plaintiff  was  warranted  in  sending  the  defendant 
skins  conforming  to  the  requirements,  and  even  if  the  offer  was 
not  such  that  the  contract  was  made  as  soon  as  skins  corre- 
sponding to  its  terms  were  sent,  sending  them  did  impose  on 
the  defendant  a  duty  to  act  about  them  ;  and  silence  on  its 
part,  coupled  with  a  retention  of  the  skins  for  an  unreasonable 
time,  might  be  found  by  the  jury  to  warrant  the  plaintiff  in 
assuming  that  they  were  accepted,  and  thus  to  amount  to  an 
acceptance.     See  Bushel  v.  Wheeler,    15  Q.  B.  442  ;  Benjamin 


Q2  HOBBS   V.    MASSASOIT    WHIP   CO.  [cHAP.  I. 

on  Sales,  §§  162-164  ;  Taylor  v.  Dexter  Engine  Co.,  146  Mass. 
613,  615.  The  proposition  stands  on  the  general  principle  that 
conduct  which  imports  acceptance  or  assent  is  acceptance  or 
assent  in  the  view  of  the  law,  whatever  may  have  been  the 
actual  state  of  mind  of  the  party— a  principle  sometimes  lost 
sight  of  in  the  cases.  O'Donnell  v.  Clinton,  145  Mass.  461, 
463  ;  McCarthy  v.    Boston   &   Lowell  Railroad,    148  Mass.  550, 

Exceptions  overruled, 

1  "  Express  contracts  are,  where  the  terms  of  the  agreement  are  openly 
uttered  and  avowed  at  the  time  of  the  making  :  as,  to  deliver  an  ox  or  ten 
loads  of  timber,  or  to  pay  a  stated  price  for  certain  goods.  Implied  are 
such  as  reason  and  justice  dictate  ;  and  which,  therefore,  the  law  pre- 
sumes that  every  man  undertakes  to  perform.  As,  if  I  employ  a  person 
to  do  any  business  for  me,  or  perform  any  work,  the  law  implies  that  I 
undertook  and  contracted  to  pay  him  as  m.uch  as  his  labor  deserves.  If 
I  take  up  wares  of  a  tradesman  without  any  agreement  of  price,  the  law 
concludes  that  I  contracted  to  pay  their  real  value." 

This  is  the  language  of  Blackstone,  2  Comm.  443,  and  it  is  open  to  some 
criticism.  There  is  some  looseness  of  thought  in  supposing  that  reason  and 
justice  ever  dictate  any  contracts  between  parties,  or  impose  such  upon 
them.  All  true  contracts  grow  out  of  the  intentions  of  the  parties  to  trans- 
actions, and  are  dictated  only  by  their  mutual  and  accordant  wills.  When 
this  intention  is  expressed,  we  call  the  contract  an  express  one.  When  it 
is  not  expressed,  it  may  be  inferred,  implied,  or  presumed,  from  circum- 
stances as  really  existing,  and  then  the  contract,  thus  ascertained,  is  called 
an  implied  one.  The  instances  given  by  Blackstone  are  an  illustration  of 
this. 

But  it  appears  in  another  place,  3  Comm.  159-166,  that  Blackstone  intro- 
duces this  thought  about  reason  and  justice  dictating  contracts,  in  order  to 
embrace,  under  his  definition  of  an  implied  contract,  another  large  class  of 
relations,  which  involve  no  intention  to  contract  at  all,  though  they  maj'  be 
treated  as  if  they  did.  Thus,  whenever,  not  our  variant  notions  of  reason 
and  justice,  but  the  common  sense  and  common  justice  of  the  country,  and 
therefore  the  common  law  or  statute  law,  impose  upon  any  one  a  duty,  irre- 
spective of  contract,  and  allow  it  to  be  enforced  by  a  contract  remedy,  he 
calls  this  a  case  of  implied  contract.  Thus  out  of  torts  grows  the  duty  of 
compensation,  and  in  many  cases  the  tort  may  be  waived,  and  the  action 
brought  in  assumpsit. 

It  is  quite  apparent,  therefore,  that  radically  different  relations  are  classi- 
fied under  the  same  term,  and  this  must  often  give  rise  to  indistinctness  of 
thought.  And  this  was  not  at  all  necessary  ;  for  we  have  another  well- 
authorized  technical  term  exactly  adapted  to  the  office  of  making  the  true 
distinction.  The  latter  class  are  merely  constructive  contracts,  while  the 
former  are  truly  implied  ones.  In  one  case  the  contract  is  mere  fiction,  a 
form  imposed  in  order  to  adapt  the  case  to  a  given  remedy  ;  in  the  other  it 
is  a  fact  legitimately  inferred.  In  one,  the  intention  is  disregarded  ;  in  the 
other,  it  is  ascertained  and  enforced.  In  one,  the  duty  defines  the  con- 
tract ;  in  the  other,  the  contract  defines  the  duty. 

We  have,  therefore,  in  law  three  classes  of  relations  called  contracts. 

I    Constructive  contracts,  which  are  fictions  of  law  adapted  to  enfoTce 


SEC.  I^.]  ADAMS   V.    LINDSELL.  03 

ADAMS  AND    Others  v.   LINDSELL  and   Another. 
In  the  King's  Bench,  June  5,   1818. 
[Reported  z'n  i  Barnewall  &^  A/derson  681.] 

Action  for  non-delivery  of  wool  according  to  agreement.  At 
the  trial  at  the  last  Lent  assizes  for  the  county  of  Worcester, 
before  Burrough,  J.,  it  appeared  that  the  defendants,  who  were 
dealers  in  wool,  at  St.  Ives,  in  the  county  of  Huntingdon,  had, 
on  Tuesday,  September  2d,  1817,  written  the  following  letter 
to  the  plaintiffs,  who  were  woollen  manufacturers  residing  in 
Bromsgrove,  Worcestershire.  "We  now  offer  you  'eight  hun- 
dred tods  of  wether  fleeces,  of  a  good  fair  quality  of  our  coun- 
try wool,  at  35^.  6d..  per  tod,  to  be  delivered  at  Leicester,  and 
to  be  paid  for  by  two  months'  bill  in  two  months,  and  to  be 
weighed  up  by  your  agent  within  fourteen  days,  receivi7ig your 
afiswer  iti  course  of  post. 

This  letter  was  misdirected  by  the  defendants,  to  Broms- 
grove, Leicestershire,  in  consequence  of  which  it  was  not  re- 
ceived by  the  plaintiffs  in  Worcestershire  till  7  p.m.  on  Frida)'', 
September  5th.  On  that  evening  the  plaintiffs  wrote  an  an- 
swer, agreeing  to  accept  the  wool  on  the  terms  proposed.  The 
course  of  the  post  between  St.  Ives  and  Bromsgrove  is  through 
London,  and  consequently  this  answer  was  not  received  by  the 
defendants  till  Tuesday,  September  9th.  On  Monday,  Septem- 
ber 8th,  the  defendants  not  having,  as  they  expected,  received 
an  answer  on  Sunday,  September  7th  (which  in  case  their  letter 
had  not  been  misdirected  would  have  been  in  the  usual  course 
of  the  post),  sold  the  wool  in  question  to  another  person.  Un- 
der these  circumstances  the  learned  judge  held,  that  the  delay 
having  been  occasioned  by  the  neglect  of  the  defendants,  the 
jury  must  take  it,  that  the  answer  did  come  back  in  due  course 
of  post  ;  and  that  then  the  defendants  were  liable  for  the  loss 
that  had  been  sustained,  and  the  plaintiffs  accordingly  recov- 
ered a  verdict. 

Jervis  having  in  Easter  Term  obtained  a  rule  fiist  for  a  new 
trial,  on  the  ground  that  there  was  no  binding  contract  between 
the  parties. 

legal  duties  by  actions  of  contract,  where  no  proper  contract  exists,  express 
or  implied. 

2.  Implied  contracts,  which  arise  under  circumstances  which,  according 
to  the  ordinary  course  of  dealing  and  the  common  understanding  of  men, 
show  a  mutual  intention  to  contract. 

3.  Express  contracts,  already  sufficiently  distinguished.— Lowrie,  J., 
Hertzog  v.  Hertzog,  29  Pa.  St.  465,  467-468.— Ed. 


94 


ADAMS   V.    LINDSELL.  [CHAP.  I. 


Dauticey,  Fuller  6"  Richardson  showed  cause.  They  contended 
that  at  the  moment  of  the  acceptance  of  the  offer  of  the  defend- 
ants by  the  plaintiffs  the  former  became  bound.  And  that  was 
on  the  Friday  evening,  when  there  had  been  no  change  of  cir- 
cumstances. They  were  then  stopped  by  the  Court,  who  called 
upon 

Jervis  &>  Cainpbell  in  support  of  the  rule.  They  relied  on 
Payne  v.  Cave,'  and  more  particularly  on  Cooke  v.  Oxley.^  In 
that  case  Oxley,  who  had  proposed  to  sell  goods  to  Cooke,  and 
given  him  a  certain  time  at  his  request,  to  determine  whether 
he  would  buy  them  or  not,  was  held  not  liable  to  the  perform- 
ance of  the  contract,  even  though  Cooke,  within  the  specified 
time,  had  determined  to  buy  them,  and  given  Oxley  notice  to 
that  effect.  So  here  the  defendants  who  have  proposed  by  letter 
to  sell  this  wool,  are  not  to  be  held  liable,  even  though  it  be 
now  admitted  that  the  answer  did  come  back  in  due  course  of 
post.  Till  the  plaintiffs'  answer  was  actually  received  there 
could  be  no  binding  contract  between  the  parties  ;  and  before 
then  the  defendants  had  retracted  their  offer  by  selling  the  wool 
to  other  persons.  But  the  Court  said  that  if  that  were  so,  no 
contract  could  ever  be  completed  by  the  post.  For  if  the  de- 
fendants were  not  bound  by  their  offer  when  accepted  by  the 
plaintiffs  till  the  answer  was  received,  then  the  plaintiffs  ought 
not  to  be  bound  till  after  they  had  received  the  notification  that 
the  defendants  had  received  their  answer  and  assented  to  it. 
And  so  it  might  go  on  ad  infinitum.  The  defendants  must  be 
considered  in  law  as  making,  during  every  instant  of  the  time 
their  letter  was  travelling,  the  same  identical  offer  to  the  plain- 
tiffs, and  then  the  contract  is  completed  by  the  acceptance  of  it 
by  the  latter.  Then  as  to  the  delay  in  notifying  the  acceptance, 
that  arises  entirely  from  the  mistake  of  the  defendants,  and  it 
therefore  must  be  taken  as  against  them  that  the  plaintiffs' 
answer  was  received  in  course  of  post.^ 

Rule  discharged. 

'3T.  R.  148.  ''Ibzd.,bs3. 

'  It  is  further  contended  that  the  money  letter  was  not  mailed  in  time  for 
the  return  mail  at  1.30.  The  request  in  Skinner's  letter  was  not  that  the 
money  should  be  sent  by  the  first  return  mail,  and  no  one  receiving  such  a 
letter  residing  in  a  city  where  there  were  several  mails  every  day,  would  so 
imderstand  it.  It  cannot  be  supposed  that  Skinner  meant  the  money  should 
be  sent  to  him  by  the  first  return  mail  or  he  would  not  receive  it,  and  then 
insist  upon  the  forfeiture  of  the  policy.  After  the  receipt  of  the  letter,  the 
assured  was  entitled  to  a  reasonable  time  in  which  to  comply,  before  he 
could  be  so  put  in  default  as  to  cause  a  forfeiture  of  his  policy.  Taking 
into  consideration  all  the  circumstances,  we  think  that  the  money  letter  was 


SEC.  I^.]  McCULLOCH    V.    EAGLE    IXSURA^XE   CO.  95 


Mcculloch  v.  the  eagle  insurance  coxMpany. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  October 

Term,    1820. 

\^Rej)orted  in  1  Pkkermg  278.] 

This  action,  which  was  assumpsit,  came  before  the  Court  upon 
a  case  stated.  The  material  facts  were  as  follows  :  On  Decem- 
ber 29th,  1820,  the  plaintiff,  who  lived  at  Kennebunk,  in  Maine, 
wrote  to  the  defendants  requesting  to  know  on  what  terms 
they  would  insure  $2500  on  his  brig  Hesper  and  cargo  from 
Martinico  to  the  United  States.  The  defendants  on  January  ist, 
1821,  sent  an  answer,  saying  they  would  take  the  risk  at  2)^  per 
cent.  This  letter  was  received  by  the  plaintiff  on  January  3d, 
on  which  day  he  wrote  a  reply  requesting  the  defendants  to  fill 
a  policy  on  the  terms  proposed  by  them.  The  defendants  on 
January  2d  wrote  again  to  the  plaintiff,  declining  to  take  the 
risk,  but  the  plaintiff  had  sent  his  letter  of  the  3d  before  he 
received  the  last  letter  of  the  defendants.  All  the  letters  were 
sent  by  mail,  and  were  duly  received  by  the  parties  respec- 
tively.    The  vessel  was  afterward  lost  on  the  voyage. 

The  only  question  in  the  cause  was,  whether  the  correspond- 
ence of  the  parties  constituted  a  contract  by  which  the  defend- 
ants were  bound. 

Prescott  for  the  plaintiff. 

Saltonstall  for  the  defendants. 

Parker,  C.J.,  delivered  the  opinion  of  the  Court.  This 
action  is  brought  to  recover  a  sum  alleged  to  have  been  insured 
by  the  defendants  on  the  brig  Hesper,  belonging  to  the  plain- 
tiff, on  a  voyage  from  Martinico  to  her  port  of  discharge,  and 
another  sum  on  her  cargo.  The  usual  evidence  of  such  con- 
tract, a  policy,  never  having  been  made,  the  only  question  sub- 
mitted is,  whether  there  was  an  agreement  to  insure  ;  every- 
thing else  necessary  to  entitle  the  plaintiff  to  recover  being 
agreed  by  the  parties.     And  it  is  certain  that  if  a  contract  was 

mailed  in  time  to  comply  with  Skinner's  request.* — Earl,  J.,  Palmer  ?'. 
Phoenix  Mutual  Fire  Insurance  Co.,  84  N.  Y.  69,  71. — Ed. 

*  The  request  referred  to  in  the  above  paragraph  was  in  the  following 
language  (see  84  N.  Y.  69):  "You  will  confer  a  great  favor  if  you  send 
bv  return  of  mail,  or  by  express,  the  amount  of  quarterly  premium,  already 
past  due  on  your  policy  of  insurance,  so  that  I  can  make  my  return  to 
home  office.  The  amount  is  $69.  Please  forward  the  same,  and  very  mucl. 
oblige." — Ed. 


96  McCULLOClI   V.    EAGLE   INSURANCE   CO.        [CHAP.  I. 

made,  the  mere  want  of  a  policy  will  not  prevent  the  plaintiff 
from  recovering. 

We  are  to  inquire,  then,  whether  the  correspondence  between 
the  parties,  which  is  submitted  to  us,  does  constitute  a  contract 
binding  upon  both  parties  ;  if  it  does  not,  whatever  might  be 
the  expectations  of  either,  it  is  only  an  attempt  to  make  a  con- 
tract, which  has  failed.  The  letter  from  the  plaintiff  of  Decem- 
ber 29th  contained  an  inquiry  only,  as  to  the  rate  of  premium 
at  which  the  insurance  might  be  done  in  the  defendants'  office, 
and  the  plaintiff  was  entirely  at  liberty  to  accept  or  refuse  the 
terms  which  were  proposed  in  answer  ;  even  if  he  had  made  no 
reply  to  the  defendants'  letter,  there  would  have  been  neither 
a  breach  of  contract  nor  of  civility.  This  answer  was  written 
on  January  ist,  ^nd  would  reach  the  post-office  in  Kennebunk, 
the  place  of  the  plaintiff's  residence,  on  the  3d.  It  was  replied 
to  on  the  day  of  the  arrival,  by  an  acceptance  of  the  terms  and 
a  direction  to  make  out  the  policy  and  deliver  it  to  the  plain- 
tiff's agent  in  Boston,  who  was  authorized  to  give  a  promissory 
note  for  the  premium  in  common  form.  But  on  January  2d, 
before  the  defendants'  letter  to  the  plaintiff  could  have  been 
received,  another  letter  was  written  by  the  defendants,  retract- 
ing the  offer  made  in  the  former  letter,  and  signifying  a  deter- 
mination not  to  insure  upon  that  vessel  upon  any  terms.  These 
letters  crossed  each  other  upon  the  road.  It  is  contended  by 
the  plaintiff,  that  the  bargain  was  complete  at  the  moment  he 
wrote  and  put  into  the  mail  his  letter  signifying  his  acceptance 
of  the  terms  offered  ;  by  the  defendants,  that  the  treaty  was 
open  until  they  should  have  received  that  letter,  and  that  in  the 
mean  time  they  had  a  right  to  withdraw  their  offer.  We  adopt 
the  latter  opinion  as  the  most  reasonable.  The  offer  did  not 
bind  the  plaintiff  until  it  was  accepted,  and  it  could  not  be 
accepted,  to  the  knowledge  of  the  defendants,  until  the  letter 
announcing  the  acceptance  was  received,  or  at  most  until  the 
regular  time  for  its  arrival  by  mail  had  elapsed.  Had  the 
vessel  arrived  in  safety  at  Kennebunk  on  the  2d,  or  on  the 
morning  of  the  3d,  the  plaintiff  would  not  have  accepted  the 
offer,  and  was  not  bound  to  accept,  so  that  the  defendants 
would  not  have  been  entitled  to  any  premium  ;  and  both  must 
be  bound,  in  order  to  make  the  contract  binding  upon  either, 
unless  time  is  given  by  one  to  the  other,  in  which  case,  perhaps, 
he  may  be  bound,  although  the  other  is  not  ;  at  least  we  should 
think  this  reasonable  in  mercantile  contracts,  though  it  was 
decided  otherwise  in  the  case  of  Cooke  v.  Oxley,  3  D.  &  E.  653. 
In  that  case  the  declaration  stated  that  the  defendant  proposed 
to  the  plaintiff  to  sell  him  tobacco  at  a  certain  price,  and,  at  the 


SEC.  I^.]    McCULLOCH  V.    EAGLE  INSURANCE  CO. 


97 


request  of  the  plaintiff,  gave  him  until  4  o'clock  p.m.  to  consent 
or  disagree  to  the  proposal.  The  plaintiff  averred  that  he  did 
agree  to  purchase,  and  gave  notice  thereof  to  the  defendant 
before  4  o'clock  ;  that  he  offered  to  pay  the  price,  and  requested 
the  defendant  to  deliver  the  tobacco,  which  he  refused.  The 
Court,  without  hearing  the  counsel  for  the  defendant,  said  that 
it  was  an  engagement  all  on  one  side,  and  was  therefore  nnJum 
pactum  ;  and  Duller,  J.,  said  there  was  neither  damage  to  the 
plaintiff  nor  advantage  to  the  defendant  at  the  time  when  the 
contract  was  first  made.  The  judgment  was  affirmed  in  the 
Exchequer  Chamber.  This  was  treated  by  the  plaintiff's  coun- 
sel as  an  actual  sale  upon  condition  to  avoid  the  statute  of 
frauds,  so  that  the  real  question  was,  as  in  the  case  before  us, 
whether  there  was  a  bargain  in  fact  amounting  to  a  sale,  as  the 
question  here  is,  whether  there  was  an  insurance  in  fact,  the 
usual  evidence  of  which  only  was  left  unfinished  ;  and  it  is  as 
necessary  that  the  obligation  should  be  mutual  in  this  case  as 
'in  that.  See  also  Payne  v.  Cave,  3  D.  &  E.  148.  It  is  sug- 
gested that  the  putting  the  letter  into  the  mail  was  a  completion 
of  the  bargain,  but  if  the  vessel  had  arrived,  and  the  plaintiff 
had  recalled  his  letter,  or  if  he  had  sent  on  an  express  to  an- 
nounce his  refusal  to  accept  before  the  letter  arrived,  we  think 
he  would  not  have  been  held  to  pay  the  premium. 

No  authority  has  been  cited  on  the  side  of  the  plaintiff  to  sup- 
port his  case,  and  we  cannot  perceive,  upon  general  principles, 
any  ground  upon  which  he  can  recover.  There  seems  to  have 
been  locus penttentice  for  both  parties,  no  change  of  circumstances 
having  occurred,  nor  any  information  being  received,  until  the 
loss  of  the  vessel  was  known,  which  was  nearly  three  months 
after  the  correspondence  ceased  between  the  parties  ;  during 
all  which  time  the  plaintiff  might  have  got  insured  elsewhere  if 
the  risk  was  a  fair  one.  Had  the  vessel  arrived  after  the  defend- 
ants' letter  was  received  and  before  it  was  answered,  there  can 
be  no  doubt  the  plaintiff  might  have  declined  entering  into  the 
bargain,  because  he  then  had  made  no  contract  ;  and  so  long 
as  it  continued  open  for  the  plaintiff,  it  must  have  been  open 
for  the  defendants,  and  their  revocation  was  made  before  the 
plaintiff  had  opportunity  to  accept. 

It  was  suggested  in  the  argument,  that  the  correspondence 
between  these  parties  formed  what  is  called  in  the  civil  law  a 
pollicitation,  a  sort  of  contract  which  arises  from  a  promise  made 
by  one  party  only,  without  any  consent  or  acceptance  by  the 
other  ;  but  this  is  a  peculiar  kind  of  obligation  which  exists 
only  from  an  individual  toward  a  body  politic  or  government. 
Heinecc.  sec.  Ord.  Pandect.  Part  VII.,  §§  334,  335.     In  a  note 


Og  DUNLOP   V.    HIGGINS.  [cHAP.  I. 

to  the  first  of  these  sections  the  author  says,  "  For  although 
protnises  made  otherwise  always  require  the  consent  and  accept- 
ance of  the  other  party,  yet  here"  (that  is,  in  promises  made  to 
the  State)  "  the  law  itself  accepts  the  promise  for  the  State." 
Plaintiff  nonsuit. 


DUNLOP  V.   HIGGINS. 

In  the  House  of  Lords,  February  21,  22,  24,  1848. 

{^Reported  in  1  House  of  Lords  Cases  381.] 

This  was  an  appeal  against  a  decree  of  the  Court  of  Session, 
made  under  the  following  circumstances  :  Messrs.  Dunlop  &  Co. 
were  iron  masters  in  Glasgow,  and  Messrs.  Higgins  &  Co.  were 
iron  merchants  in  Liverpool.  Messrs.  Higgins  had  written  to 
Messrs.  Dunlop  respecting  the  price  of  iron,  and  received  the 
following  answer  : 

"  Glasgow,  January  22,  1845. 

"  We  shall  be  glad  to  supply  you  with  2000  tons,  pigs,  at 
d^s.  per  ton,  net,  delivered  here." 

Messrs.  Higgins  wrote  the  following  reply  : 

"  Liverpool,  January  25,  1845. 
"You  say  65^.  net,  for  2000  tons  pigs.     Does  this  mean  for 
our  usual  four  months  bill  ?     Please  give  us  this  information  in 
course  of  post,   as  we  have  to  decide  with   other  parties   on 
Wednesday  next." 

On  the  28th  Messrs.  Dunlop  wrote  : 

"  Our  quotation  meant  65^-.  net,  and  not  a  four  months  bill." 

This  letter  was  received  by  Messrs.  Higgins  on  January  30th, 
and  on  the  same  day,  and  by  post,  but  not  by  the  first  post  of 
that  day,  they  dispatched  an  answer  in  these  terms  : 

"  We  will  take  the  2000  tons  pigs  you  offer  us.  Your  letter 
crossed  ours  of  yesterday,  but  we  shall  be  glad  to  have  your 
answer  respecting  the  additional  1000  tons.  .In  your  first  letter 
you  omitted  to  state  any  terms,  hence  the  delay."  This  letter 
was  dated  "January  31st."  It  was  not  delivered  in  Glasgow 
until  2  o'clock  p.m.  on  February  ist,  and,  on  the  same  day, 
Messrs.  Dunlop  sent  the  following  reply  : 

"  Glasgow,  February  i,  1845. 
"  We  have  your  letter  of  yesterday,  but  are  sorry  that  we  can- 
not now  enter  the  2000  tons  pig  iron,  our  offer  of  the  28th  not 
having  been  accepted  in  course." 


SEC.  ic.1  DUNLOP   V.    HIGGINS.  qq 

Messrs.  Higgins  wrote  on  February  2d  to  say  that  they  had 
erroneously  dated  their  letter  on  January  31st,  that  it  was  reallv 
written  and  posted  on  the  30th,  in  proof  of  which  they  referred 
to  the  post-mark.  They  did  not,  however,  explain  the  delay 
which  had  taken  place  in  its  delivery.  The  iron  was  not  fur- 
nished to  them,  and  iron  having  risen  very  rapidly  in  the 
market,  the  question  whether  there  had  been  a  complete  con- 
tract between  these  parties  was  brought  before  a  court  of  law. 
Messrs.  Higgins  instituted  a  suit  in  the  Court  of  Session  for 
damages,  as  for  breach  of  contract.  The  defence  of  Messrs. 
Dunlop  was,  that  their  letter  of  the  28th,  offering  the  contract, 
not  having  been  answered  in  due  time,  there  had  been  no  such 
acceptance  as  would  convert  that  offer  into  a  lawful  and  binding 
contract  ;  that  their  letter  having  been  delivered  at  Liverpool 
before  8  o'clock  in  the  morning  of  Januarj^  30th,  Messrs.  Higgins 
ought,  according  to  the  usual  practice  of  merchants,  to  have  an- 
swered it  by  the  first  post,  which  left  Liverpool  at  3  o'clock  p.m. 
on  that  day.  A  letter  so  dispatched  would  be  due  in  Glasgow 
at  2  o'clock  P.M.  on  January  31st  ;  another  post  left  Liverpool 
for  Glasgow  every  day  at  i  o'clock  a.m.,  and  letters  to  be  dis- 
patched by  that  post  must  be  put  into  the  office  during  the  pre- 
ceding evening,  and  if  any  letter  had  been  sent  by  that  post  on 
the  morning  of  the  31st,  it  must  have  been  delivered  in  Glasgow 
in  the  regular  course  of  post  at  8  o'clock  in  the  morning  of  Feb- 
ruary ist.  As  no  communication  from  Messrs.  Higgins  arrived 
by  either  of  these  posts,  Messrs.  Dunlop  contended  that  they 
were  entitled  to  treat  their  offer  as  not  accepted,  and  that  they 
were  not  bound  to  wait  until  the  third  post  delivered  in  Glasgow 
at  2  o'clock  P.M.,  of  Saturday,  February  ist  (at  which  time 
Messrs.  Higgins'  letter  did  actually  arrive),  before  they  entered 
into  other  contracts,  the  taking  of  which  would  disable  them 
from  performing  the  contract  they  had  offered  to  Messrs. 
Higgins. 

The  cause  came  before  Lord  Ivorj'-,  as  Lord  Ordinary,  who 
directed  an  issue,  which  he  settled  in  the  following  terms  : 

"  Whether,  about  the  end  of  January,  1845,  Messrs.  Higgins 
purchased  from  Messrs,  Dunlop  2000  tons  of  pig  iron,  at  the 
price  of  65^-.  per  ton,  and  whether  Messrs.  Dunlop  wrongfully 
failed  to  deliver  the  same,  to  the  damage,  loss,  and  injury  of 
the  pursuers  ?  Damages  laid  atp£"6ooo."  This  issue  was  tried 
before  the  Lord  Justice  General,  when  it  appeared  that  the 
letter  of  Messrs.  Higgins,  accepting  the  offer,  was  written  on 
the  30th  ;  that  it  was  posted  a  short  time  after  the  closing  of 
the  bags  for  the  dispatch  at  3  o'clock  p.m.  on  that  day,  and 
consequently  did  not  leave  Liverpool  till  the  dispatch  at  i  o'clock 


lOO 


DUNLOP   V.    HIGGINS.  [cHAP. 


in  the  morning  of  the  31st  ;  that  in  consequence  of  the  slippery- 
state  of  the  roads,  the  bag  then  sent  did  not  arrive  at  Warring- 
ton till  after  the  departure  of  the  down  train  that  ought  to  have 
conveyed  it,  and  that  this  circumstance  occasioned  it  to  be  de- 
layed beyond  the  ordinary  hour  of  delivery.  The  Lord  Justice 
General  told  the  jury,  "  that  he  adopted  the  law  as  duly  ex- 
pounded in  the  case  of  Adams  v.  Lindsell,*  and  which  is  as 
follows  :  '  A.  by  a  letter,  offers  to  sell  to  B.  certain  specified 
goods,  receiving  an  answer  by  return  of  post ;  the  letter  being  mis- 
directed, the  answer  notifying  the  acceptance  of  the  offer  arrived 
two  days  later  than  it  ought  to  have  done  ;  on  the  day  follow- 
ing that  when  it  would  have  arrived,  if  the  original  letter  had 
been  properly  directed,  A.  sold  the  goods  to  a  third  person,' 
and  in  which  it  was  held  '  that  there  was  a  contract  binding  the 
parties  from  the  moment  the  offer  was  accepted,  and  that  B.  was 
entitled  to  recover  against  A.  in  an  action  for  not  completing 
his  contract.' 

The  counsel  for  Messrs.  Dunlop  tendered  the  following  ex- 
ceptions :  The  first  exception  related  to  evidence,  and  alleged 
"  that  no  evidence  to  show  that  the  letter,  purporting  to  be 
dated  on  the  31st,  was  really  written  on  January  30th,  ought  to 
have  been  admitted."  The  other  exceptions  related  to  the 
charge,  and  were  as  follow  : 

2.  In  so  far  as  his  Lordship  directed  the  jury,  in  point  of  law, 
that  if  Messrs.  Higgins  posted  their  acceptance  of  the  offer  in 
due  time  according  to  the  usage  of  trade,  they  are  not  respon- 
sible for  any  casualties  in  the  post-office  establishment. 

3.  In  so  far  as  his  Lordship  did  not  direct  the  jury  in  point  of 
law,  that  if  a  merchant  makes  an  offer  to  a  party  at  a  distance, 
by  post-letter,  requiring  to  be  answered  within  a  certain  time, 
and  no  answer  arrives  within  such  time  as  it  should  arrive,  if 
the  party  had  written  and  posted  his  letter  within  the  time 
allowed,  the  offerer  is  free,  though  the  answer  may  have  been 
actually  written  and  posted  in  due  time,  if  he  is  not  proved  to 
be  aware  of  accidental  circumstances  preventing  the  due  ar- 
rival of  the  answer. 

4.  In  so  far  as  his  Lordship  did  not  direct  the  jury,  in  point 
of  law,  that  in  the  case  above  supposed,  if  an  answer  arrives, 
bearing  a  date  beyond  the  time  limited  as  above  for  making 
answer,  and  arrives  by  a  mail,  and  is  delivered  at  a  time  corre- 
sponding to  such  date,  the  offerer  is  entitled  to  consider  himself 
free  to  deal  with  the  goods  as  his  own,  either  to  sell  or  to  hold, 
if  he  be  not  in  the  knowledge  that  the  answer  received  was  truly 
written  of  an  earlier  date,  and  delayed  in  its  arrival  by  accident. 

'  I  Barnewall  &  Alderson,  681. 


SEC.  l<r.]  DUNLOP  V.   HIGGINS. 


lor 


5.  In  so  far  as  his  Lordship  did  not  direct  the  jury,  in  point 
of  law,  that  in  case  of  failure  to  deliver  goods  sold  at  a  stipu- 
lated price,  and  immediately  deliverable,  the  true  measure  of 
damage  is  the  difference  between  the  stipulated  price  and  the 
market  price,  on  or  about  the  day  the  contract  is  broken,  or  at 
or  about  the  time  when  the  purchaser  might  have  supplied 
himself.' 

These  exceptions  were  afterward  argued  before  the  judges  of 
the  First  Division,  who  pronounced  an  interlocutor,  disallowing 
the  exceptions  ;  and  that  interlocutor  was  the  subject  of  the 
present  appeal. 

Bethell  and  Atiderson  for  the  appellants. 

Stuart  Worthy  and  Hugh  Hill  for  the  respondents  were  not 
called  on. 

The  Lord  Chancellor.  My  Lords,  everything  which  learn- 
ing or  ingenuity  can  suggest  on  the  part  of  the  appellants,  has 
undoubtedly  been  suggested  on  the  part  of  the  learned  counsel 
who  have  just  addressed  the  House  ;  and  if  your  Lordships 
concur  in  my  view,  that  they  have  failed  in  making  out  their 
case,  you  will  have  the  satisfaction  of  knowing  that  you  have 
come  to  that  conclusion  after  having  had  everything  suggested 
to  you  that  by  possibility  could  be  advanced  in  favor  of  this 
appeal. 

The  case  certainly  appears  to  me  one  which  requires  great 
ingenuity  on  the  part  of  the  appellants,  because  I  do  not  think 
that,  in  the  facts  of  the  case,  there  is  anything  to  warrant  the 
appeal.  The  contest  arises  from  an  order  sent  from  Liverpool 
to  Glasgow,  or  rather  a  proposition  sent  from  Glasgow  to  Liver- 
pool, and  accepted  by  the  house  at  Liverpool.  It  is  unneces- 
sary to  go  earlier  into  the  history  of  the  case  than  the  letter 
sent  from  Liverpool  by  Higgins,  bearing  date  of  January  31st. 
A  proposition  had  been  made  by  the  Glasgow  house  of  Dunlop, 
Wilson  &  Co.,  to  sell  2000  tons  of  pig  iron.  The  answer  is  of 
that  date  of  January  31st  :  "  Gentlemen,  we  will  take  the  2000 
tons,  pigs,  you  offer  us."  Another  part  of  the  letter  refers  to 
other  arrangements  ;  but  there  is  a  distinct  and  positive  offer 
to  take  the  2000  tons  of  pigs.  To  that  letter  there  is  annexed  a 
postscript  in  which  they  say  :  "  We  have  accepted  your  offer 
unconditionally,  but  we  hope  you  will  accede  to  our  request  as 
to  delivery  and  mode  of  payment  by  two  months  bill." 

That,  my  Lords,  therefore,  is  an  unconditional  acceptance, 
by  the  letter  dated  January  31st,  which  was  proved  to  have  been 
put  into  the  post-office  at  Liverpool  on  the  30th  ;  but  it  was  not 
delivered,  owing  to  the  state  of  severe  frost  at  that  time,  which 

'  So  much  of  the  opinion  as  relates  to  this  question  has  been  omitte.l.— Eu. 


I02  DUNLOP   V.    HIGGINS.  [CHAP.  I. 

delayed  the  mail  from  reaching  Glasgow  at  the  time  at  which, 
in  the  ordinary  course,  it  would  have  arrived  there.  The  letter 
having  been  put  in  on  January  30th,  it  ought  to  have  arrived  at 
Glasgow  on  the  following  day,  but  it  did  not  arrive  till  Feb- 
ruary ist. 

It  appears  that  between  the  time  of  writing  the  offer  and 
February  ist,  the  parties  making  the  offer  had  changed  their 
minds  ;  and  instead  of  being  willing  to  sell  2000  tons  of  pig 
iron  on  the  terms  proposed,  they  were  anxious  to  be  relieved 
from  that  stipulation,  and  on  that  day,  February  ist,  they  say  : 
"  We  have  yours  of  yesterday,  but  are  sorry  that  we  cannot 
enter  the  2000  tons  of  pig  iron,  our  offer  of  the  28th  not  having 
been  accepted  in  course." 

Under  these  circumstances,  the  parties  wishing  to  buy,  and 
by  their  letter  accepting  the  offer,  instituted  proceedings  in  the 
Court  of  Session  for  damages  sustained  by  the  non-performance 
of  the  contract.  And  the  first  question  raised  by  the  first  ex- 
ception applies  not  to  the  summing  up  of  the  learned  judge,  but 
to  the  admission  of  evidence  by  him  ;  for  connected  with  that 
admission  of  evidence  is  the  first  exception.  I  need  hardly  say 
but  little  on  this  point,  but  as  it  formed  part  of  the  proceedings 
on  which  the  judgment  must  ultimately  be  pronounced,  I  will 
very  shortly  call  your  Lordships'  attention  to  the  proposition 
presented  for  your  decision  by  that  first  exception. 

My  Lords,  the  exception  states,  "  that  the  pursuers  having 
admitted  that  they  were  bound  to  answer  the  defenders'  offer 
of  the  28th,  by  letter  written  and  posted  on  the  30th,  and  the 
only  answer  received  by  the  defenders,  being  admitted  to  be 
dated  January  31st,  and  received  in  Glasgow  by  the  mail,  which 
in  due  course  ought  to  bring  the  Liverpool  letters  of  the  31st, 
but  not  Liverpool  letters  of  the  30th,  it  is  not  competent  in  a 
question  as  to  the  right  of  the  defenders  to  withdraw  or  fall 
from  the  offer,  to  prove  that  the  letter  bearing  date  of  Jan- 
uary 31st  was  written  and  dispatched  from  Liverpool  on  the 
30th,  and  prevented  by  accident  from  reaching  Glasgow  in  due 
course,  especially  as  it  is  not  alleged  that  the  defenders  were 
Aware  (previous  to  February  3d)  of  any  such  accident  having 
occurred." 

The  counsel  for  the  pursuer  answered,  that  nothing  had  been 
stated,  but  that  the  pursuers  were  bound  instantly  to  answer 
the  defenders'  offer  of  January  28th,  and  that,  according  to  the 
practice  of  merchants,  it  was  sufficient  if  that  letter  was  an- 
swered on  that  day  on  which  it  was  received. 

The  Lord  Justice  General  did  overrule  the  objection,  and 
almitted  the  evidence. 


SEC.  IC.\  DUNLOr   V.    HIGGINS.  IO3 

The  exception  is  that  the  learned  judge  was  wrong  in  permit- 
ting the  pursuer  to  explain  his  mistake.  The  proposition  is, 
that  if  a  man  is  bound  to  answer  a  letter  on  a  particular  day, 
and  by  mistake  puts  a  date  in  advance,  he  is  to  be  bound  by 
his  error,  whether  it  produces  mischief  to  the  other  party  or 
not.  It  is  unnecessary  to  do  more  than  state  this  proposition 
in  order  to  induce  you  to  assent  to  the  view  I  take  of  the  objec- 
tion, and  to  come  to  the  conclusion  that  the  learned  Judge  was 
right  in  allowing  the  pursuer  to  go  into  evidence  to  show  the 
mistake. 

I  pass  on  then  to  the  fourth  exception  which  is  connected 
with  this  point,  and  which  states  that  his  Lordship  did  not 
direct  the  jury  in  point  of  law  ;  that  in  the  case  above  supposed, 
if  an  answer  arrives,  bearing  a  date  beyond  the  time  limited  as 
above  for  making  answer,  and  arrives  by  a  mail,  and  is  deliv- 
ered at  a  time  corresponding  to  such  date,  the  offerer  is  entitled 
to  consider  himself  free  to  deal  with  the  goods  as  his  own, 
either  to  sell  or  to  hold,  if  he  was  not  in  the  knowledge  that  the 
answer  received  was  duly  written  at  an  earlier  date,  and  delayed 
in  its  arrival  by  accident — that  is  to  say,  that  if  a  letter  bears  a 
date  which,  on  the  face  of  it,  shows  that  it  was  written  erro- 
neously, nevertheless  the  party  is  bound  by  the  date  so  written 
on  the  face  of  the  letter,  and  you  cannot  go  into  the  circum- 
stances to  explain  how  it  happened  that  the  letter  did  not  arrive 
in  time,  but  that  you  are  bound  to  assume  that  it  arrived  on  the 
day  mentioned,  and  the  party  cannot  give  any  evidence  in 
explanation. 

My  Lords,  that  falls  with  the  other  exception,  and  the  two 
together  go  for  nothing.  I  merely  state  it  for  the  purpose  of 
asking  your  Lordships  to  concur  in  the  opinion  that  I  have 
formed — that  the  learned  judge  was  correct  in  the  mode  in 
which  he  left  the  question  to  the  jury,  and  consequently  that 
on  that  point  the  bill  of  exceptions  cannot  be  supported. 

The  next  exception  to  be  considered  is  the  second,  and  that 
raises  a  more  important  question,  though  not  one  attended  with 
much  difficulty.  The  exception  is,  that  his  Lordship  did  direct 
the  jury  in  point  of  law,  that  if  the  pursuers  posted  their  accept- 
ance of  the  offer  in  due  time,  according  to  the  usage  of  trade, 
they  are  not  responsible  for  any  casualties  in  the  post-office 
establishment. 

Now,  there  may  be  some  little  ambiguity  in  the  construction 
of  that  proposition.  It  proceeds  on  the  assumption  that,  by 
the  usage  of  trade,  an  answer  ought  to  have  been  returned  by 
the  post,  and  that  the  30th  was  the  right  day  on  which  that 
answer  ought  to  have  been  notified.     Then  comes  the  question, 


104 


DUNLOP   V.    HIGGTNS.  [CHAP.  I. 


whether,  under  those  circumstances,  that  being  the  usage  of 
trade,  the  fact  of  the  letter  being  delayed,  not  by  the  act  of  the 
party  sending  it,  but  by  an  accident  connected  with  the  post, 
the  party  so  putting  the  letter  in  on  the  right  day  is  to  lose  the 
benefit  which  would  have  belonged  to  him  if  the  letter  had 
arrived  in  due  course  ? 

I  cannot  conceive,  if  that  is  the  right  construction  of  the  direc- 
tion of  the  learned  judge,  how  any  doubt  can  exist  on  the  point. 
If  a  party  does  all  that  he  can  do,  that  is  all  that  is  called  for. 
If  there  is  a  usage  of  trade  to  accept  such  an  offer,  and  to  return 
an  answer  to  such  an  offer,  and  to  forward  it  by  means  of  the 
post,  and  if  the  party  accepting  the  offer  puts  his  letter  into  the 
post  on  the  correct  day,  has  he  not  done  everything  he  was 
bound  to  do  ?  How  can  he  be  responsible  for  that  over  which 
he  has  no  control  ?  It  is  not  the  same  as  if  the  date  of  the 
party's  acceptance  of  the  offer  had  been  the  subject  of  a  special 
contract  :  as  if  the  contract  had  been,  "  I  make  you  this  offer, 
but  you  must  return  me  an  answer  on  the  30th,  and  on  the 
earliest  post  of  that  day."  The  usage  of  trade  would  require 
an  answer  on  the  day  on  which  the  offer  was  received,  and 
Messrs.  Higgins,  therefore,  did  on  the  30th,  in  proper  time, 
return  an  answer  by  the  right  conveyance — the  post-office. 

If  that  was  not  correct,  and  if  you  were  to  have  reference 
now  to  any  usage  constituting  the  contract  between  the  parties 
a  specific  contract,  it  is  quite  clear  to  me  that  the  rule  of  law 
would  necessarily  be  that  which  has  obtained  by  the  usage  of 
trade.  It  has  been  so  decided  in  cases  in  England,  and  none 
has  been  cited  from  Scotland  which  controverts  that  propo- 
sition ;  but  the  cases  in  England  put  it  beyond  all  doubt.  It  is 
not  disputed — it  is  a  very  frequent  occurrence,  that  a  party 
having  a  bill  of  exchange,  which  he  tenders  for  payment  to  the 
acceptor,  and  payment  is  refused,  is  bound  to  give  the  earliest 
notice  to  the  drawer.  That  person  may  be  resident  many  miles 
distant  from  him  ;  if  he  puts  a  letter  into  the  post  at  the  right 
time,  it  has  been  held  quite  sufficient  ;  he  has  done  all  that  he 
is  expected  to  do  as  far  as  he  is  concerned  ;  he  has  put  the 
letter  into  the  post,  and  whether  that  letter  be  delivered,  or 
not,  is  a  matter  quite  immaterial,  because  for  accidents  happen- 
ing at  the  post-office  he  is  not  responsible. 

My  Lords,  the  case  of  Stocken  v.  CoUen,'  is  precisely  a  case 
of  that  nature,  where  the  letter  did  not  arrive  in  time.  In  that 
case  Baron  Parke  says  :  "  It  was  a  question  for  the  jury  whether 
the  letter  was  put  into  the  post-office  in  time  for  delivery  on 
the  28th.  The  post-office  mark  certainly  raised  a  presumption 
'  7  Meeson  &  Welsby,  515. 


SEC.  I^.]  DUNLOP   V.    HIGGIXS. 


105 


to  the  contrary,  but  it  was  not  conclusive.  The  jurors  have 
believed  the  testimony  of  the  witness  who  posted  the  letter,  and 
the  verdict  was  therefore  right.  If  a  party  puts  a  notice  of  dis- 
honor into  the  post,  so  that  in  due  course  of  delivery  it  would 
arrive  in  time,  he  has  done  all  that  can  be  required  of  him,  and 
it  is  no  fault  of  his  if  delay  occurs  in  the  delivery."  Baron 
Alderson  says  :  "  The  party  who  sends  the  notice  is  not  answer- 
able for  the  blunder  of  the  post-office.  I  remember  to  have 
held  so  in  a  case  on  the  Norfolk  Circuit,  where  a  notice  ad- 
dressed to  Norwich  had  been  sent  to  Warwick.  If  the  doctrine 
that  the  post-office  is  only  the  agent  for  the  delivery  of  the 
notice  was  correct,  no  one  could  safely  avail  himself  of  that 
mode  of  transmission.  The  real  question  is  whether  the  party 
has  been  guilty  of  laches." 

There  is  also  the  other  case  which  has  been  referred  to,  which 
declares  the  same  doctrine,  the  case  of  Adams  v.  Lindsell.' 
That  is  a  case  where  the  letter  went,  by  the  error  of  the  party 
sending  it,  to  the  wrong  place,  but  the  party  receiving  it  an- 
swered it,  so  far  as  he  was  concerned,  in  proper  time.  The 
party,  however,  who  originally  sent  the  offer  not  receiving  the 
answer  in  proper  time,  thought  he  was  discharged,  and  entered 
into  a  contract  and  sold  the  goods  to  somebody  else.  The 
question  was,  whether  the  party  making  the  offer  had  a  right 
to  withdraw  after  notice  of  acceptance.  He  sold  the  goods 
after  the  party  had  written  the  letter  of  acceptance,  but  before 
it  arrived  he  said,  "  I  withdraw  my  offer."  Therefore  he  said, 
"  Before  I  received  your  acceptance  of  my  offer  I  had  with- 
drawn it."  And  that  raised  the  question  when  the  acceptance 
took  place,  and  what  constituted  the  acceptance.  It  was 
argued,  that  "  till  the  plaintiff's  answer  was  actually  received, 
there  could  be  no  binding  contract  between  the  parties,  and 
that  before  then  the  defendants  had  retracted  their  offer  by 
selling  the  wool  to  other  persons."  But  the  Court  said  :  "If 
that  was  so,  no  contract  could  ever  be  completed  by  the  post, 
for  if  the  defendants  were  not  bound  by  their  offer  when 
accepted  by  the  plaintiffs  till  the  answer  was  received,  then  the 
plaintiffs  ought  not  to  be  bound  till  after  they  had  received  the 
notification  that  the  defendants  had  received  their  answer  and 
assented  to  it.  And  so  it  might  go  on  ad  infinitiDH.  The  defend- 
ants must  be  considered,  in  law,  as  making,  during  every  in- 
stant of  the  time  their  letter  was  travelling,  the  same  identical 
offer  to  the  plaintiffs,  and  then  the  contract  is  completed  by  the 
acceptance  of  it  by  the  latter." 

Those  two  cases  leave  no  doubt  at  all  on  the  subject.  Com- 
'  I  Barnewall  &  Alderson,  681. 


I06  DUNLOP   V.    HIGGINS.  [CHAP.  I. 

mon  sense  tells  us  that  transactions  cannot  go  on  without  such 
a  rule,  and  these  cases  seem  to  be  the  leading  cases  on  the  sub- 
ject ;  and  we  have  heard  no  authority  cited  which  in  the  least 
degree  affects  the  principle  on  which  they  proceed.  The  law  of 
Scotland  appears  to  be  the  same  as  the  law  of  England,  for 
Mr.  Bell's  Commentary  lays  down  the  same  rule  as  existing  in 
Scotland,  and  nothing  has  been  stated  to  us  in  contradiction  of 
his  opinion. 

Now  whether  I  take  that  proposition  as  conclusive  upon  the 
objection,  or  whether  I  consider  it  as  a  question  entirely  open, 
whether  the  putting  the  letter  into  the  post  was,  or  not,  in  time 
to  constitute  a  valid  acceptance,  it  appears  to  me  that  the 
learned  judge  was  right  in  the  conclusion  to  which  he  came, 
that  he  was  right  in  the  mode  in  which  he  left  the  question  to 
the  jury,  and  that  he  was  not  bound  to  lay  down  the  law  in  the 
manner  alleged  in  the  bill  of  exceptions. 

The  next  exception  is  the  third,  which  says  :  '  In  so  far  as 
his  Lordship  did  not  direct  the  jury  in  point  of  law,  that  if  a 
merchant  makes  an  offer  to  a  party  at  a  distance,  by  post-letter, 
requiring  to  be  answered  within  a  certain  time,  and  no  answer 
arrives  within  such  time  as  it  should  arrive,  if  the  party  had 
written  and  posted  his  letter  within  the  time  allowed,  the  offerer 
is  free,  though  the  answer  may  have  actually  been  written  and 
posted  in  due  time,  if  he  is  not  proved  to  be  aware  of  accidental 
circumstances  preventing  the  due  arrival  of  the  answer." 

That,  my  Lords,  raises,  first  of  all,  a  proposition  that  does 
not  arise  in  this  case  at  all.  It  assumes  a  contract  that  requires 
an  answer  within  a  certain  stipulated  time,  and  it  assumes 
(which  is  already  disposed  of  by  what  I  have  said  in  answer  to 
the  second  exception)  that  the  putting  a  letter  into  the  post  is 
not  a  compliance  with  the  requisition  of  the  offer.  But  there  is 
no  special  contract  here,  and  therefore  this  exception  cannot  be 
maintained. 

1  believe  that  in  these  remarks  I  have  exhausted  the  whole  of 
the  objections  made,  and  my  advice  to  your  Lordships  is  to 
affirm  the  judgment  of  the  Court  from  which  this  is  appealed. 

It  was  ordered  that  the  interlocutor  complained  of  should  be 
affirmed  with  costs. 


SEC.  K.]  TAYLOE   V.    MERCHANTS'    FIRE    INS.    CO.  107 


WILLIAM    H.    TAYLOE,    Appellant,    v.    THE    MER- 
CHANTS'   FIRE    INSURANCE   COMPANY 
OF   BALTIMORE. 

In  the  Supreme  Court  of  the  United  States,  January 

Term,  1850. 

[Reported  in  9  Howard  390.] 

Johnson  for  the  appellant. 

Lloyd  and  Nelson  for  the  appellees. 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  Court.' 

This  is  an  appeal  from  a  decree  of  the  Circuit  Court  for  the 
District  of  Maryland,  which  was  rendered  for  the  defendants. 

The  case  in  the  Court  below  was  this  :  William  H.  Tayloe, 
of  Richmond  County,  Va.,  applied  to  John  Minor,  the  agent  of 
the  defendants,  residing  at  Fredericksburg  in  that  State,  for  an 
insurance  upon  his  dwelling-house  to  the  amount  of  $8000  for 
one  year,  and,  as  he  was  about  leaving  home  for  the  State  of 
Alabama,  desired  the  agent  to  make  the  application  in  his 
behalf. 

The  application  was  made  accordingly,  under  the  date  of 
November  25th,  1844,  and  an  answer  received  from  the  secre- 
tary of  the  company,  stating  that  the  risk  would  be  taken  at 
70  cents  on  the  $1000,  the  premium  amounting  to  the  sum  of 
$56.  The  agent  stated  in  the  application  to  the  company  the 
reason  why  it  had  not  been  signed  by  Tayloe  ;  that  he  had 
gone  to  the  State  of  Alabama  on  business,  and  would  not  return 
till  February  following,  and  that  he  was  desired  to  communi- 
cate to  him  at  that  place  the  answer  of  the  company. 

On  receiving  the  answer,  the  agent  mailed  a  letter  directed 
to  Tayloe,  under  date  of  December  2d,  advising  him  of  the 
terms  of  the  insurance,  and  adding,  "  Should  you  desire  to 
effect  the  insurance,  send  me  your  check  payable  to  my  order 
for  $57,  and  the  business  is  concluded."  The  additional  dollar 
was  added  for  the  policy. 

This  letter,  in  consequence  of  a  misdirection,  did  not  reach 
Tayloe  till  the  20th  of  the  month  ;  who,  on  the  next  day,  mailed 
a  letter  in  answer  to  the  agent,  expressing  his  assent  to  the 
terms,  and  inclosing  his  check  for  the  premium  as  requested. 
He  also  desired  that  the  policy  should  be  deposited  in  the  bank 
for  safe-keeping.  This  letter  of  acceptance  was  received  on  the 
31st  at  Fredericksburg  by   the   agent,  who  mailed  a  letter   in 

'  The  statement  of  facts  has  been  omitted. — Ed. 


I08  TAYLOE   V.    merchants'    FIRE   INS.    CO.       [cHAP.  I. 

answer  the  next  day,  communicating  to  Tayloe  his  refusal  to 
carry  into  effect  the  insurance,  on  the  ground  that  his  accept- 
ance came  too  late,  the  centre  building  of  the  dwelling-house 
in  the  mean  time,  on  the  22d  of  the  month,  having  been  con- 
sumed by  fire. 

The  company,  on  being  advised  of  the  facts,  confirmed  the 
view  taken  of  the  case  by  their  agent,  and  refused  to  issue  the 
policy  or  pay  the  loss. 

A  bill  was  filed  in  the  Court  below  by  the  insured  against  the 
company,  setting  forth,  substantially,  the  above  facts,  and  pray- 
ing that  the  defendants  might  be  decreed  to  pay  the  loss,  or  for 
such  other  relief  as  the  complainant  might  be  entitled  to. 

I.  Several  objections  have  been  taken  to  the  right  of  the  com- 
plainant to  recover,  which  it  will  be  necessary  to  notice  ;  but 
the  principal  one  is  that  the  contract  of  insurance  was  not  com- 
plete at  the  time  the  loss  happened,  and  therefore  that  the  risk 
proposed  to  be  assumed  had  never  attached.' 

Two  positions  have  been  taken  by  the  counsel  for  the  com- 
pany for  the  purpose  of  establishing  this  ground  of  defence. 

1.  The  want  of  notice  to  the  agent  of  the  company  of  the 
acceptance  of  the  terms  of  the  insurance  ;  and, 

2.  The  non-payment  of  the  premium. 

The  first  position  assumes  that,  where  the  company  have 
made  an  offer  through  the  mail  to  insure  upon  certain  terms, 
the  agreement  is  not  consummated  by  the  mere  acceptance  of 
the  offer  by  the  party  to  whom  it  is  addressed  ;  that  the  con- 
tract is  still  open  and  incomplete  until  the  notice  of  acceptance 
is  received  ;  and  that  the  company  are  at  liberty  to  withdraw 
the  offer  at  any  time  before  the  arrival  of  the  notice,  and  this 
even  without  communicating  notice  of  the  withdrawal  to  the 
applicant  ;  in  other  words,  that  the  assent  of  the  company, 
express  or  implied,  after  the  acceptance  of  the  terms  proposed 
by  the  insured,  is  essential  to  a  consummation  of  the  contract. 

The  effect  of  this  construction  is  to  leave  the  property  of  the 
insured  uncovered  until  his  acceptance  of  the  offer  has  reached 
the  company  and  has  received  their  assent,  for  if  the  contract  is 
incomplete  until  notice  of  the  acceptance,  till  then  the  company 
may  retract  the  offer,  as  neither  party  is  bound  until  the 
negotiation  has  resulted  in  a  complete  bargain  between  the 
parties. 

In  our  apprehension,  this  view  of  the  transaction  is  not  in 
accordance  with  the  usages  and  practice  of  these  companies  in 
taking  risks  ;  nor  with  the  understanding  of  merchants  and 
other  business  men  dealing  with   them  ;  nor  with  the  principles 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


SEC.  ir.]  TAVLOE   V.    MERCHANTS*    FIRE   INS.   CO.  I09 

of  law,  settled  in  analogous  cases,  governing  contracts  entered 
into  by  correspondence  between  parties  residing  at  a  distance. 

On  the  contrary,  we  are  of  opinion  that  an  offer  under  the 
circumstances  stated,  prescribing  the  terms  of  insurance,  is  in- 
tended, and  is  to  be  deemed,  a  valid  undertaking  on  the  part 
of  the  company,  that  they  will  be  bound,  according  to  the  terms 
tendered,  if  an  answer  is  transmitted  in  due  course  of  mail, 
accepting  them  ;  and  that  it  cannot  be  withdrawn,  unless  the 
withdrawal  reaches  the  party  to  whom  it  is  addressed  before 
his  letter  of  reply  announcing  the  acceptance  has  been  trans- 
mitted. 

This  view  of  the  effect  of  the  correspondence  seems  to  us  to 
be  but  carrying  out  the  intent  of  the  parties,  as  plainly  mani- 
fested by  their  acts  and  declarations. 

On  the  acceptance  of  the  terms  proposed,  transmitted  by  due 
course  of  mail  to  the  company,  the  minds  of  both  parties  have 
met  on  the  subject,  in  the  mode  contemplated  at  the  time  of 
entering  upon  the  negotiation,  and  the  contract  becomes  com- 
plete. The  party  to  whom  the  proposal  is  addressed  has  a  right 
to  regard  it  as  intended  as  a  continuing  offer  until  it  shall  have 
reached  him,  and  shall  be  in  due  time  accepted  or  rejected. 

Such  is  the  plain  import  of  the  offer.  And  besides,  upon  any 
other  view,  the  proposal  amounts  to  nothing,  as  the  acceptance 
would  be  but  the  adoption  of  the  terms  tendered,  to  be,  in  turn, 
proposed  by  the  applicant  to  the  company  for  their  approval  or 
rejection.  For,  if  the  contract  is  still  open  until  the  company 
is  advised  of  an  acceptance,  it  follows,  of  course,  that  the 
acceptance  may  be  repudiated  at  any  time  before  the  notice  is 
received.  Nothing  is  effectually  accomplished  by  an  act  of 
acceptance. 

It  is  apparent,  therefore,  that  such  an  interpretation  of  the 
acts  of  the  parties  would  defeat  the  object  which  both  had  in 
view  in  entering  upon  the  correspondence. 

The  fallacy  of  the  argument,  in  our  judgment,  consists  in  the 
assumption,  that  the  contract  cannot  be  consummated  without 
a  knowledge  on  the  part  of  the  company  that  the  offer  has  been 
accepted.  This  is  the  point  of  the  objection.  But  a  little  re- 
flection will  show  that,  in  all  cases  of  contracts  entered  into 
between  parties  at  a  distance  by  correspondence,  it  is  impossible 
that  both  should  have  a  knowledge  of  it  the  moment  it  becomes 
complete.     This  can  only  exist  where  both  parties  are  present. 

The  position  may  be  illustrated  by  the  case  before  us.  If  the 
contract  became  complete,  as  we  think  it  did,  on  the  acceptance 
of  the  offer  by  the  applicant,  on  December  21st,  1844,  the  com- 
pany, of  course,  could  have  no  knowledge  of  it  until  the  letter 


no  TAYLOE   V.    merchants'   FIRE   INS.    CO.        [CHAP.  I. 

of  acceptance  reached  the  agent,  on  the  31st  of  the  month  ; 
and,  on  the  other  hand,  upon  the  hypothesis  it  was  not  com- 
plete until  notice  of  the  acceptance,  and  then  became  so,  the 
applicant  could  have  no  knowledge  of  it  at  the  time  it  took 
effect.  In  either  aspect,  and,  indeed,  in  any  aspect  in  which 
the  case  can  be  presented,  one  of  the  parties  must  be  unadvised  of 
the  time  when  the  contract  takes  effect,  as  its  consummation  must 
depend  upon  the  act  of  one  of  them  in  the  absence  of  the  other. 

The  negotiation  being  carried  on  through  the  mail,  the  offer 
and  acceptance  cannot  occur  at  the  same  moment  of  time  ;  nor, 
for  the  same  reason,  can  the  meeting  of  the  minds  of  the  parties 
on  the  subject  be  known  by  each  at  the  moment  of  concurrence  ; 
the  acceptance  must  succeed  the  offer  after  the  lapse  of  some 
interval  of  time  ;  and,  if  the  process  is  to  be  carried  farther  in 
order  to  complete  the  bargain,  and  notice  of  the  acceptance 
must  be  received,  the  only  effect  is  to  reverse  the  position  of  the 
parties,  changing  the  knowledge  of  the  completion  from  the  one 
party  to  the  other. 

It  is  obviously  impossible,  therefore,  under  the  circumstances 
stated,  ever  to  perfect  a  contract  by  correspondence,  if  a  knowl- 
edge of  both  parties  at  the  moment  they  become  bound  is  an 
essential  element  in  making  out  the  obligation.  And  as  it  must 
take  effect,  if  effect  is  given  at  all  to  an  endeavor  to  enter  into  a 
contract  by  correspondence,  in  the  absence  of  the  knowledge  of 
one  of  the  parties  at  the  time  of  its  consummation,  it  seems  to 
us  more  consistent  with  the  acts  and  declarations  of  the  parties, 
to  consider  it  complete  on  the  transmission  of  the  acceptance  of 
the  offer  in  the  way  they  themselves  contemplated  ;  instead  of 
postponing  its  completion  till  notice  of  such  acceptance  has 
been  received  and  assented  to  by  the  company. 

For  why  make  the  offer,  unless  intended  that  an  assent  to  its 
terms  should  bind  them  ?  And  why  require  any  further  assent 
on  their  part,  after  an  unconditional  acceptance  by  the  party  to 
whom  it  is  addressed  ? 

We  have  said  that  this  view  is  in  accordance  with  the  usages 
and  practice  of  these  companies,  as  well  as  with  the  general  prin- 
ciples of  law  governing  contracts  entered  into  by  absent  parties. 

In  the  instructions  of  this  company  to  their  agent  at  Freder- 
icksburg, he  is  advised  to  transmit  all  applications  for  insurance 
to  the  office  for  consideration  ;  and  that,  upon  the  receipt  of  an 
answer,  if  the  applicant  accepts  the  terms,  the  contract  is  con- 
sidered complete  without  waiting  to  communicate  the  accept- 
ance to  the  company  ;  and  the  policy  to  be  thereafter  issued  is  to 
bear  date  from  the  time  of  the  acceptance. 

The  company  desire  no  further  communication  on   the  sub- 


SEC.  U.]  TAYLOE   V.    MERCHANTS*    FIRE    INS.   CO.  m 

ject,  after  they  have  settled  upon  the  terms  of  the  risk,  and  sent 
them  for  the  inspection  of  the  applicant,  in  order  to  the  con- 
summation of  the  bargain.  The  communication  of  the  accept- 
ance by  the  agent  afterward  is  to  enable  them  to  make  out  the 
policy.  The  contract  is  regarded  as  complete  on  the  acceptance 
of  the  terms. 

This  appears  also  to  have  been  the  understanding  of  the 
agent  ;  for,  on  communicating  to  the  insured  the  terms  received 
from  the  company,  he  observes  :  "  Should  you  desire  to  effect 
the  above  insurance,  send  me  your  check  payable  to  my  order 
for  $57,  and  the  business  is  concluded  ;"  obviously  enough  im- 
porting that  no  other  step  would  be  necessary  to  give  effect  to 
the  insurance  of  the  property  upon  the  terms  stated. 

The  cases  of  Adams  v.  Linsdell,  i  Barn.  &  Aid.  68i,  and 
Mactier's  Adm'rs  v.  Frith,  6  Wend.  104,  are  authorities  to  show 
that  the  above  view  is  in  conformity  with  the  general  principles 
of  law  governing  the  formation  of  all  contracts  entered  into 
between  parties  residing  at  a  distance  by  means  of  corre- 
spondence. 

The  unqualified  acceptance  by  the  one  of  the  terms  proposed 
by  the  other,  transmitted  by  due  course  of  mail,  is  regarded  as 
closing  the  bargain  from  the  time  of  the  transmission  of  the 
acceptance. 

This  is  also  the  effect  of  the  case  of  Eliason  v.  Henshaw, 
4  Wheat.  228,  in  this  Court,  though  the  point  was  not  neces- 
sarily involved  in  the  decision  of  the  case.  The  acceptance 
there  had  not  been  according  to  the  terms  of  the  bargain  pro- 
posed, for  which  reason  the  plaintiff  failed. 

Upon  the  whole,  without  pursuing  the  examination  further, 
we  are  of  opinion  that  the  decree  of  the  Court  below  should  be 
reversed,  and  that  the  cause  be  remitted,  with  directions  to  the 
Court  to  take  such  further  proceedings  therein  as  may  be  neces- 
sary to  carry  into  effect  the  opinion  of  this  Court. 

Order. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  Circuit  Court  of  the  United  States  for  the  District  of 
Maryland,  and  was  argued  by  counsel.  On  consideration 
whereof,  it  is  now  here  ordered,  adjudged,  and  decreed  by  this 
Court,  that  the  decree  of  the  said  Circuit  Court  in  this  cause 
be,  and  the  same  is  hereby,  reversed,  with  costs,  and  that  this 
cause  be,  and  the  same  is  hereby,  remanded  to  the  said  Circuit 
Court,  with  directions  to  that  Court  to  take  such  proceedings 
therein  as  may  be  necessary  to  carry  into  effect  the  opinion  of 
this  Court. 


112  HALLOCK   V.   COMMERCIAL   INS.   CO.  [CHAP.  I. 


GEORGE  W.  HALLOCK  v.  THE   COMMERCIAL 
INSURANCE  COMPANY. 

In  the  Supreme  Court  of  New  Jersey,  June  Term,  1857. 
[Repor/ed  in  26  A^ew  Jersey  Law  Reports  268.] 

An  action  of  trespass  on  the  case  was  brought  in  this  Court 
by  George  W.  Hallock  against  the  Commercial  Insurance  Com- 
pany. 

The  plaintiff  declared  on  a  policy  of  insurance,  and  the  de- 
fendants pleaded  the  general  issue.  The  case  was  tried  at  the 
Hudson  Circuit,  before  a  jury,  at  May  Term,  1856. 

The  Court  directed  that  a  verdict  should  be  taken  for  the 
plaintiff,  with  liberty  to  make  a  special  case  for  the  opinion  of 
the  Supreme  Court,  or  turn  it  into  a  special  verdict,  at  the 
instance  of  either  party,  within  ninety  days  after  the  judgment 
of  the  Supreme  Court  should  be  rendered  and  entered. 

The  cause  was  argued  at  February  Term,  1857,  before  the 
Chief  Justice  and  Justices  Potts  and  Vredenburgh.' 

A.  O.  Zabriskic  for  the  plaintiff. 

/.   W.  Scudder  for  the  defendants. 

Vredenburgh,  J.  G.  W.  Breck  was  the  agent  of  the  defend- 
ants at  Bath,  N.  Y.,  to  make  surveys,  receive  proposals  for 
insurance,  and  receive  premiums  on  risks  accepted  by  the  com- 
pany, but  was  not  authorized  to  make  insurances  or  issue  poli- 
cies. The  proposals  for  insurance  were  sent  by  him  to  the 
company  at  Jersey  City,  and  if  accepted  by  them,  the  policies 
were  to  be  sent  to  him  to  deliver. 

On  March  2d,  1855,  the  plaintiff  applied  to  him  to  insure  his 
building  in  Bath,  for  one  year  from  March  loth,  for  $1200. 
Breck  made  the  survey,  and  told  him  what  the  premium  would 
be.  The  plaintiff  thereupon  offered  the  premium  to  Breck,  who 
said  he  would  consider  it  as  paid,  but  would  leave  it  with  the 
plaintiff,  who  was  a  banker  and  with  whom  he  kept  his  account, 
until  the  policy  arrived,  when  he  would  call  and  get  the  money. 
The  application  was  signed  by  the  plaintiff,  and  with  the  survey 
attached,  was  sent  by  Breck  to  the  company,  on  March  2d  or  3d. 
The  defendants  deferred  acting  on  the  application  until  the 
secretary  could  procure  a  map  of  Bath,  referred  to  by  Breck. 

On  March  13th,  between  10  and  12  a.m.,  the  map  having  been 
received,  a  policy  was  filled  up  on  said  building,   insuring  it 

'  A  portion  of  the  statement  of  facts  has  been  omitted. — Ed. 


SEC.   U.]  HALLOCK   V.    COMMERCIAL    INS.    CO.  II3 

from  March  loth  for  one  year,  signed  by  the  proper  officers, 
and  mailed  at  Jersey  City,  directed  to  Breck  at  Bath,  which  by 
due  course  of  mail  would  have  reached  him  on  March  14th,  but 
which,  owing  to  the  snow,  did  not  until  March  i6th.  At  the 
same  time  that  Breck  received  the  policy  he  also  received  a  tele- 
graphic despatch,  dated  March  15th,  as  follows  :  "  Risk  not 
taken  when  burnt.     Return  policy  when  received." 

Accompanying  the  policy  was  also  a  letter  from  the  secretary, 
of  the  tenor  following  : 

"  Office  of  the  Commercial  Insurance  Company, 
No.  3  Montgomery  Street,  Jersey  City,  March  13,  1855. 
"  Messrs.  Breck  and  Sawyer,  Esq'rs,  Bath,  N.  Y.  : 

"  Dear  Sirs  :  Your  application  on  G.  W.  Hallock's  saloon 
has  been  held  under  advisement  till  we  could  procure  a  copy  of 
the  map,  of  which  you  speak  in  your  letter.  We  do  not  look  on 
it  as  a  very  desirable  risk,  but  nevertheless,  as  the  rate  seems  a 
fair  one,  we  enclose  a  policy,  relying  very  much  on  your  repre- 
sentation in  regard  to  the  good  character  of  the  occupant.  En- 
closed please  find  policy,  No.  1054,  for  $1200,  premium  $24. 

"  Respectfully, 

"  J.  M.  Chapman, 

"  Secretary." 

On  March  i6th,  after  the  policy  arrived,  the  plaintiff  tendered 
the  premium  in  gold  to  Breck,  and  demanded  the  policy.  Breck 
accepted  the  money,  because  he  had  refused  to  accept  it  when 
the  application  was  made,  and  considered  it  on  deposit,  mean- 
ing to  put  the  plaintiff  in  the  same  situation  as  if  he  had  re- 
ceived it  on  March  2d,  but  refused  to  deliver  the  policy,  because 
so  directed  by  the  defendants. 

The  building  insured  was  entirely  consumed  by  fire  on  March 
13th  at  8  A.M.,  about  two  hours  before  the  risk  was  accepted  or 
the  policy  signed.  There  was  a  variance  between  the  policy 
declared  on  and  the  original,  in  the  time  of  payment  of  the 
insurance  and  the  name  of  the  officers  who  signed  the  policy. 
The  suit  is  on  the  policy,  and  the  plea  the  general  issue. 

As  to  the  variances,  there  is  no  proof,  nor  even  any  allegation, 
that  the  defendants  were  misled  by  them  to  their  prejudice,  and 
they  must  consequently,  under  the  43d  section  of  the  Act  of 
1855  (Nix.  Dig.  641)  be  deemed  to  be  immaterial. 

The  defendants  submit  two  other  points — viz.: 

First.  That  the  policy  is  void,  because  when  made  the  loss 
had  already  occurred  ;'  second,  that  the  policy  never  did 
become  a  contract  of  insurance. 

'  So  much  of  the  opinion  as  relates  to  this  question  has  been  omitted.— Ed. 


114  HALLOCK   V.   COMMERCIAL   INS.   CO.  [CHAP.  I. 

Secondly.  The  defendants  insist  that  the  policy  never  did 
become  a  contract  of  insurance  ;  that  even  if  the  fire  had  hap- 
pened on  March  14th,  or  at  any  time  afterward,  no  action  could 
have  been  sustained  upon  it. 

The  defendants  suggest  three  reasons  why  the  policy  never 
became  a  contract. 

First.     Because  the  premium  never  was  paid.* 

Second.  Because  the  application  of  the  plaintiff  cannot  be 
considered  as  an  existing  offer  when  the  policy  was  signed. 

Third.     Because  the  policy  never  was  delivered. 

Secondly.  The  defendants  insist  that  the  application,  having 
been  made  on  March  2d,  and  no  action  having  been  taken  by 
the  defendants  until  the  13th,  we  cannot  consider  the  plaintiff 
as  still  continuing  his  offer  to  the  defendants  ;  that  we  are 
bound  to  consider  it  as  withdrawn.  But  why  so  ?  There  is  no 
pretence  of  any  express  withdrawal.  The  question  and  the 
answer  can  never,  in  any  case,  be  simultaneous  ;  the  question 
must  always  remain  for  some  length  of  time  with  the  one  to 
whom  it  is  put,  and  abide  the  answer.  In  every  negotiation, 
whether  by  telegraph,  by  letter,  or  by  word  of  mouth,  the 
application  and  the  answer  can  never  be  at  the  same  precise 
instant.  The  application  must  wait  upon  the  answer.  If  the 
application  is  considered  to  be  withdrawn  as  soon  as  made,  no 
two  minds  ever  could  meet  upon  any  proposition.  The  aggre- 
gatio  mentium  never  could  take  place.  In  all  cases  the  applica- 
tion is  construed  to  stand  until  the  contrary  appears  ;  until  it 
is  either  withdrawn  or  answered.  Pothier  Traite  du  Contrat 
du  vente,  p.  i,  §  2,  Art.  3,  No.  32  ;  Mactier  v.  Frith,  6  Wend. 
103. 

But  here  the  plaintiff  avers  the  application  to  be  still  stand- 
ing. The  defendants  treat  it  as  still  before  them  on  March  13th, 
by  accepting  it,  and  making  out  the  policy.  We  must  therefore 
treat  it  as  the  parties  treat  it,  as  still  at  noon  on  March  13th  a 
standing  and  valid  offer  by  the  plaintiff  to  the  defendants. 

Thirdly.  The  defendants  contend  that  the  policy  never  was 
delivered,  so  as  to  make  it  a  living  contract.  But  it  appears,^ 
by  the  case,  that  the  contract  to  insure  was  complete  before 
they  mailed  the  policy  to  Breck.  Their  telegraphic  despatch, 
dated  on  March  15th,  says,  "  Risk  not  taken  when  burnt  ;  re- 
turn policy  when  received."  This  necessarily  implies  that  the 
risk  was  taken,  but  taken  after  the  fire.  Breck  had  no  authority 
to  insure.  After  the  proposals  weie  accepted  by  the  company, 
they  made  out  the  policies,  and  sent  them  to  Breck  to  deliver  ; 
so  that  it  appears,   by  the  case,   that  before  they   mailed   the 

'  So  much  of  the  opinion  as  relates  to  this  question  has  been  omitted.— Ed. 


SEC.  !<;.]  HALLOCK   V.    COMMERCIAL   INS.    CO.  I  15 

policy  to  Breck,  they  must  have  received  the  premium  and 
accepted  the  risk,  and  thus  completed  the  contract  to  insure. 
If  the  case  had  gone  no  further,  and  no  policy  had  ever  been 
made  out,  it  is  well  settled  that  the  plaintiff  could  have  sued 
them  upon  this  contract  at  law  or  forced  from  them  a  policy  in 
equity.  Perkins  v.  Washington  Ins.  Co.,  4  Cow.  660  ;  Hamil- 
ton V.  Lycoming  Ins.  Co.,  5  Barr.  339  ;  Angell  on  Fire  Ins., 
§§  34,  47  ;  Union  Mutual  v.  The  Commercial  Mutual,  Law  Re- 
porter, March,  1856,  p.  610. 

Under  these  circumstances,  a  policy  drawn  up  and  signed  by 
the  proper  officers  wants  no  further  delivery.  It  is  a  vital 
policy  as  soon  as  signed,  becomes  instantly  the  property  of  the 
insured,  and  is  held  by  the  insurer  for  his  use.  Ang.  on  Fire 
Ins.,  §§  T^T^^  31  ;  Pim  v.  Reed,  6  Man.  &  Grang.  i  ;  Kohne  v. 
Ins.  Co.,  I  Wash.  C.  C.  R.  93. 

But  here  were  further  acts  of  delivery  of  the  policy.  It  was, 
on  March  13th,  mailed,  and  sent  to  Breck,  to  deliver  to  the 
plaintiff.  This  was  sending  it  to  the  plaintiff  by  Breck.  Breck 
and  the  mail  were  only  the  vehicles  to  carry  it  to  him.  It  was 
the  same  thing  as  if  mailed  or  sent  directly  to  the  plaintiff. 
The  defendants  suggest,  in  answer,  that  Breck  was  their  agent, 
and  that,  by  sending  it  to  him,  they  did  not  part  with  the  pos- 
session of  the  policy,  and  that  they  only  gave  authority  to  Breck 
to  deliver,  which  they  could  and  did  revoke  before  actual  de- 
livery. But  when  they  mailed  the  policy  to  Breck  to  deliver, 
they  did  not  constitute  him  their  agent,  to  receive  or  keep  it  for 
them,  nor  to  retain  it  as  their  agent.  He  was,  in  that  regard, 
no  agent  of  theirs  ;  he  had  nothing  further  to  do  for  them.  By 
sending  him  the  policy  to  deliver,  they  made  Breck  trustee  for 
the  plaintiff  ;  they  made  it  a  deposit  with  Breck  to  the  credit  of 
the  plaintiff.  It  was  a  delivery  to  Breck  to  deliver  to  the  plain- 
tiff, which  was  a  good  delivery  to  the  plaintiff.  Shep.  Touch.  5S. 
This  is  not  a  question  of  the  authority  or  acts  of  an  agent  ;  but 
whether  the  defendants,  by  sending  the  policy  to  Breck  to  de- 
liver, did  an  overt  act  intended  to  signify  that  the  policy  should 
have  a  present  vitality.  This  certainly  was  such  an  act.  With- 
out any  further  interference  on  their  part  it  would  have  resulted 
in  actual  delivery  to  the  plaintiff.  It  was  intended  to  signify  to 
the  plaintiff  not  only  that  the  policy  was  a  present  contract,  but 
to  effect  an  actual  delivery  of  it  to  him.  Kentucky  Mutual  Ins. 
Co.  V.  Jenks,  5  Porter  (Ind.)  R.  96  ;  5  Barr.  339  ;  6  How.  390. 

Suppose  the  defendants  had  retained  the  policy,  and  had 
merely  told  Breck  to  tell  the  plaintiff  that  they  held  the  policy 
subject  to  the  plaintiff's  order,  would  they  not  have  been 
deemed  as  holding  the  policy  for  the  plaintiff? 


Il6  HALLOCK   V.   COiMMERCIAL   INS.   CO.  [CHAP.  I. 

The  defendants  next  suggest  that  the  plaintiff  was  ignorant 
of  their  acceptance  of  the  risk,  of  their  making  out  and  mailing 
the  policy  to  Breck  until  after  they  had  countermanded  its  de- 
livery, and  that  the  aggregatio  mentium  could  not  take  place  until 
after  the  acceptance  of  the  proposition  by  the  defendants  came 
to  the  plaintiff's  knowledge,  and  that  before  that  the  defend- 
ants had  changed  their  own  minds,  so  that  in  fact  it  never  did 
take  place,  and  that  consequently  there  was  no  legal  delivery  of 
this  policy. 

This  involves  the  more  general  question,  does  a  contract  arise 
when  an  overt  act  is  done  intended  to  signify  the  acceptance  of 
a  specific  proposition,  or  not  until  that  overt  act  comes  to  the 
knowledge  of  the  proposer  ?  This  question  may  arise  upon 
every  mode  of  negotiating  a  contract,  whether  the  parties  be  in 
each  other's  presence  or  not.  First  comes  the  mental  resolve 
to  accept  the  proposition  ;  but  the  law  can  only  recognize  an 
overt  act.  Whether  that  act  be  a  word  spoken,  a  telegraphic 
sign,  or  a  letter  mailed,  some  interval  of  time,  more  or  less 
appreciable,  must  intervene  between  the  doing  of  the  act  and 
its  coming  to  the  knowledge  of  the  party  to  whom  it  is  ad- 
dressed. In  the  mean  time,  what  is  the  condition  of  affairs  ? 
Is  it  a  contract  or  no  contract  ?  If  the  bidder  does  not  see  the 
auctioneer's  hammer  fall  ;  if  the  article  written  for  and  sent 
never  arrives  ;  if  the  verbal  answer,  when  the  parties  are  in 
each  other's  presence,  is  in  a  foreign  tongue,  or  by  sudden  noise 
or  distraction  is  not  heard  ;  if  the  telegraphic  circuit  is  broken  ; 
if  the  mail  miscarries  ;  if  the  word  spoken  or  the  letter  sent  is 
overtaken,  and  countermanded  by  the  electric  current,  is  there 
no  contract  ?  In  the  progress  of  the  negotiation,  at  what  pre- 
cise point  of  time  does  mind  meet  mind,  does  the  contract 
spring  into  life  ? 

Upon  this  subject,  with  respect  to  negotiations  conducted  by 
written  communications,  there  has  been  some  variety  of  de- 
cision, but  it  appears  to  me  that  the  weight  of  authority,  as 
well  as  reason  and  necessity,  admit  of  but  one  solution. 

The  meeting  of  two  minds,  the  aggregatio  mentiiwi  necessary 
to  the  constitution  of  every  contract,  must  take  place  eo  instanti 
with  the  doing  of  any  overt  act  intended  to  signify  to  the  other 
party  the  acceptance  of  the  proposition,  without  regard  to  when 
that  act  comes  to  the  knowledge  of  the  other  party  ;  everything 
else  must  be  question  of  proof  or  of  the  binding  force  of  the 
contract  by  matters  subsequent.  The  overt  act  may  be  as  vari- 
ous as  the  form  and  nature  of  contracts.  It  may  be  by  the  fall 
of  the  hammer,  by  words  spoken,  by  letter,  by  telegraph,  by 
remitting  the  article  sent  for,  by  mutual  signing  or  by  delivery 


SEC.  ic]  HALLOCK   V.    COMMERCIAL   INS.   CO.  I17 

of  the  paper,  and  the  delivery  may  be  by  any  act  intended  to 
signify  that  the  instrument  shall  have  a  present  vitality.  What- 
ever the  form,  the  act  done  is  the  irrevocable  evidence  of  the 
•  aggregatio  vientiiwi ;  at  that  instant  the  bargain  is  struck.  The 
■acceptor  can  no  more  overtake  and  countermand  by  telegraph 
his  letter  mailed  than  he  can  his  words  of  acceptance  after  they 
have  issued  from  his  lips  on  their  way  to  the  hearer.  If  the 
two  minds  do  not  meet  eo  insta/iti  with  the  act  signifying  accept- 
ance, when  can  they,  in  the  nature  of  things,  ever  approach 
each  other  more  closely  ?  The  defendants  say,  when  the  act  of 
acceptance  comes  to  the  knowledge  of  the  other  party.  But 
this  knowledge  would  be  a  fact  without  any  force,  unless  we 
suppose  in  the  proposer  a  power  still  of  electing  not  to  accept 
the  acceptance.  But  if  we  do  this,  it  is  apparent  that  the  nego- 
tiation is  yet  precisely  in  the  same  stage  of  development  it  was 
in  when  the  first  proposition  was  waiting  upon  the  first  answer. 
The  notion  that  there  is  no  contract  until  the  acceptance  comes 
to  the  knowledge  of  the  other  party,  proceeds  upon  the  ground, 
in  the  first  place,  that  the  proposal  has  been  withdrawn  or  lost 
its  force,  which  is  against  the  intent  of  the  parties  and  the 
necessities  of  the  case  ;  and  in  the  second  place,  upon  the 
ground  that  the  answer  is  conditional,  whereas  we  suppose  it 
to  be  absolute.  We  suppose  the  acceptor  to  say  not  simply 
I  agree,  but  to  say  I  agree  if  you  do,  which  requires  an  answer 
from  the  proposer  ;  so  that  the  minds  do  not  meet  till  he  an- 
swers. But  in  the  mean  time  the  acceptor  may  have  changed 
his  mind,  and  for  the  same  reason  as  before,  there  is  no  bargain 
until  this  last  answer  comes  to  the  knowledge  of  the  other 
party  ;  and  so,  upon  this  theory,  it  must  go  on  ad  infinitum 
without  the  possibility  of  the  aggregatio  nientiu?n  ever  taking 
place.  There  is,  in  fact,  no  difference  between  the  acceptance 
of  a  proposition  by  word  of  mouth  and  a  letter  stating  an  accept- 
ance. In  the  one  case  it  is  articulate  sounds  carried  by  the  air, 
in  the  other,  written  signs  carried  by  the  mail  or  by  telegraph. 
The  vital  question  is,  was  the  intention  manifested  by  any  overt 
act,  not  by  what  kind  of  messenger  it  was  sent.  The  bargain, 
if  ever  struck  at  all,  must  be  co  instanti  with  such  overt  act. 
Mailing  a  letter  containing  an  acceptance,  or  the  instrument 
itself  intended  for  the  other  party,  is  certainly  such  an  act. 
Adams  v.  Lindsell,  i  Barn.  &.  Aid.  681  ;  Dunlop  v.  Higgins, 
I  House  of  Lords  Cases,  381  ;  Duncan  v.  Topham,  8  C.  B.  225  ; 
Potter  V.  Saunders,  6  Hare,  i  ;  Tayloe  v.  Merchants'  Ins.  Co., 
9  How.  390  ;  Hamilton  v.  Lycoming  Ins.  Co.,  5  Barr.  339  ; 
Vassar  v.  Camp,  14  Barb.  341  ;  Mactier  v.  Frith,  6  Wend.  103  ; 
Kentucky  Mutual  v.  Jenks,  5   Porter's  (Ind.)   R.  96.     This  last 


Il8  HOUSEHOLD   INS.   CO.   V.    GRANT.  [cHAP.  I. 

case,    in   all   its    essential    features,    is    identical    with    the   one 
before  us. 

The  only  English  case  sustaining  the  defendants  in  their  view 
that  I  have  seen,  is  that  of  Cooke  v.  Oxley,  3  Term  R.  653,' 
which,  it  will  be  perceived  by  the  above  references,  has  been 
efifectually  overruled  in  their  courts. 

In  the  State  of  New  York  the  case  of  Mactier  v.  Frith,  i  Paige, 
434,  was  reversed  in  their  Court  of  Errors  by  a  very  large  vote 
(6  Wend,  iii),  and  the  doctrine  sustained  as  contended  for  by 
the  plaintiff. 

The  only  other  American  case  on  this  side  of  the  question  is 
that  of  McCuUoch  z'.  The  Eagle  Ins.  Co.,  i  Pick.  278.  This 
last  is  against  the  whole  current  of  authorities  both  in  England 
and  in  this  country,  and  appears  to  me  requires  for  the  creation 
of  a  contract  a  fact  without  significance,  or  a  condition  that 
would  render  its  creation  impossible. 

Let  judgment  be  entered  on  the  verdict  for  the  plaintiff.' 


THE  HOUSEHOLD   FIRE  AND   CARRIAGE  ACCIDENT 
INSURANCE    COMPANY    (Limited)  v.   GRANT. 

In  the  Court  of  Appeal,  July  i,  1879. 

\^Reported  in  Law  Reports,  4  Exchequer  Division  216.] 

Action  to  recover  ^^94  i5.s-.  being  the  balance  due  upon  100 
shares  allotted  to  the  defendant  on  October  25th,  1874,  in  pur- 
suance of  an  application  from  the  defendant  for  such  shares 
dated  September  30th,  1874. 

At  the  trial  before  Lopes,  J.,  during  the  Middlesex  Sittings, 
1878,  the  following  facts  were  proved.  In  1874  one  Kendrick 
was  acting  in  Glamorganshire  as  the  agent  of  the  company  for 
the  placing  of  their  shares,  and  on  September  30th  the  defend- 
ant handed  to  Kendrick  an  application  in  writing  for  shares  in 
the  plaintiffs'  company,  which  stated  that  the  defendant  had 
paid  to  the  bankers  of  the  company  ^^5,  being  a  deposit  of 
i^.  per  share,  and  requesting  an  allotment  of  100  shares,  and 
agreeing  to  pay  the  further  sum  of  195-.  per  share  within  twelve 
months  of  the  date  of  the  allotment.  Kendrick  duly  forwarded 
this  application  to  the  plaintiffs  in  London,  and  the  secretary 
of  the  company  on  October  20th,  1874,  made  out  the  letter  of 
allotment  in  favor  of  the  defendant,  which  was  posted  addressed 

'  The  concurring  opinion  of  Potts,  J.,  has  been  omitted.— Ed. 


SEC.  ic]  HOUSEHOLD    INS.    CO.    7'.    GRANT. 


119 


to  the  defendant  at  his  residence,  16  Herbert  Street,  Swansea, 
Glamorganshire  ;  his  name  was  then  entered  on  the  register  of 
shareholders.  This  letter  of  allotment  never  reached  the  de- 
fendant. The  defendant  never  paid  the  ^5  mentioned  in  his 
application,  but  the  plaintiffs'  company  being  indebted  to  the 
defendant  in  the  sum  of  ^^5  for  commission,  that  sum  was  duly 
credited  to  his  account  in  their  books.  In  July,  1875,  a  divi- 
dend at  the  rate  of  2^  per  cent  was  declared  on  the  shares,  and 
in  February,  1876,  a  further  dividend  at  the  same  rate  ;  these 
dividends,  amounting  altogether  to  the  sum  of  5s.,  was  also 
credited  to  the  defendant's  account  in  the  books  of  the  plain- 
tiffs' company.  Afterward  the  company  went  into  liquidation, 
and  on  December  7th,  1877,  the  official  liquidator  applied  for 
the  sum  sued  for  from  the  defendant  ;  the  defendant  declined 
to  pay  on  the  ground  that  he  was  not  a  shareholder. 

On  these  facts  the  learned  judge  left  two  questions  to  the 
jury.  I.  Was  the  letter  of  allotment  of  October  20th  in  fact 
posted  ?  2.  Was  the  letter  of  allotment  received  by  the  de- 
fendant ?  The  jury  found  the  first  question  in  the  affirmative 
and  the  last  in  the  negative. 

The  learned  judge  reserved  the  case  for  further  consideration, 
and  after  argument  directed  judgment  to  be  entered  for  the 
plaintiffs  on  the  authority  of  Dunlop  2>.  Higgins." 

The  defendant  appealed. 

Finlay  and  Dillwyti  for  the  defendant. 

Wilberforce  and  G.  Arbuthnot  [JV.  G.  Harrison,  Q.C.,  with 
them)  for  the  plaintiffs. 

The  following  judgments  were  delivered  : 

Thesiger,  L.J.  In  this  case  the  defendant  made  an  applica- 
tion for  shares  in  the  plaintiffs'  company  under  circumstances 
from  which  we  must  imply  that  he  authorized  the  company,  in 
the  event  of  their  allotting  to  him  the  shares  applied  for,  to 
send  the  notice  of  allotment  by  post.  The  company  did  allot 
him  the  shares,  and  duly  addressed  to  him  and  posted  a  letter 
containing  the  notice  of  allotment,  but  upon  the  finding  of  the 
jury  it  must  be  taken  that  the  letter  never  reached  its  destina- 
tion. In  this  state  of  circumstances  Lopes,  J.,  has  decided  that 
the  defendant  is  liable  as  a  shareholder.  He  based  his  decision 
mainly  upon  the  ground  that  the  point  for  his  consideration 
was  covered  by  authority  binding  upon  him,  and  I  am  of  opin- 
ion that  he  did  so  rightly,  and  that  it  is  covered  by  authority 
equally  binding  upon  this  Court. 

The  leading  case  upon  the  subject  is  Dunlop  v.  Higgins.'  It 
is  true  that  Lord  Cottenham  might  have  decided  that  case  with- 
'  I  H.  L.  C.  3S1.  '  n>ui. 


I20  HOUSEHOLD    INS.    CO.   V.    GRANT.  [CHAP.  I. 

out  deciding  the  point  raised  in  this.  But  it  appears  to  me 
equally  true  that  he  did  not  do  so,  and  that  he  preferred  to  rest 
and  did  rest  his  judgment  as  to  one  of  the  matters  of  exception 
before  him  upon  a  principle  which  embraces  and  governs  the 
present  case.  If  so,  the  Court  is  as  much  bound  to  apply  that 
principle,  constituting  as  it  did  a  ratio  decidendi,  as  it  is  to  follow 
the  exact  decision  itself.  The  exception  was  that  the  Lord 
Justice  General  directed  the  jury  in  point  of  law  that,  if  the 
pursuers  posted  their  acceptance  of  the  offer  in  due  time,  accord- 
ing to  the  usage  of  trade  they  were  not  responsible  for  any 
casualties  in  the  post-oflfice  establishment.  This  direction  was 
wide  enough  in  its  terms  to  include  the  case  of  the  acceptance 
never  being  delivered  at  all  ;  and  Lord  Cottenham,  in  express- 
ing his  opinion  that  it  was  not  open  to  objection,  did  so,  after 
putting  the  case  of  a  letter  containing  a  notice  of  dishonor 
posted  by  the  holder  of  a  bill  of  exchange  in  proper  time,  in 
which  case  he  said  :'  "  Whether  that  letter  be  delivered  or  not 
is  a  matter  quite  immaterial,  because  for  accidents  happening 
at  the  post-of!ice  he  is  not  responsible."  In  short,  Lord  Cot- 
tenham appears  to  me  to  have  held  that,  as  a  rule,  a  contract 
formed  by  correspondence  through  the  post  is  complete  as  soon 
as  the  letter  accepting  an  offer  is  put  into  the  post,  and  is  not 
put  an  end  to  in  the  event  of  the  letter  never  being  delivered. 
My  view  of  the  effect  of  Dunlop  v.  Higgins'  is  that  taken  by 
James,  L.J.,  in  Harris's  Case  ;'  there*  he  speaks  of  the  former 
case  as  "  a  case  which  is  binding  upon  us,  and  in  which  every 
principle  argued  before  us  was  discussed  at  length  by  the  Lord 
Chancellor  in  giving  judgment  ;"  he  adds,  the  Lord  Chancellor 
"  arrived  at  the  conclusion  that  the  posting  of  the  letter  of 
acceptance  is  the  completion  of  the  contract — that  is  to  say,  the 
moment  one  man  has  made  an  offer,  and  the  other  has  done 
something  binding  himself  to  that  offer,  then  the  contract  is 
complete,  and  neither  party  can  afterward  escape  from  it." 
Mellish,  J.,  also  took  the  same  view  ;  he  says  :®  "In  Dunlop  7. 
Higgins^  the  question  was  directly  raised  whether  the  law  was 
truly  expounded  in  the  case  of  Adams  v.  Lindsell.'  The  House 
of  Lords  approved  of  the  ruling  of  that  case.  The  Lord  Chan- 
cellor Cottenham  said,  in  the  course  of  his  judgment,  that  in 
the  case  of  a  bill  of  exchange,  notice  of  dishonor,  given  by  put- 
ting a  letter  into  the  post  at  the  right  time,  had  been  held  quite 
sufficient  whether  that  letter  was  delivered  or  not  ;  and  he  re- 
ferred to  Stocken  v.  Collin*  on  that  point,  he  being  clearly  of 

'  I  H.  L.  C.  at  p.  399.  *■  Ibid.,  at  p.  592.  '  i  B.  &  A.  681. 

» Ibid.,  381.  '  Ibid.,  at  p.  595.  «  7  M.  &  W.  515. 

8  Law  Rep.  7  Ch.  587.  «  i  H.  L.  C.  381. 


SEC.  I^.]  HOUSEHOLD   INS.    CO.   V.    GRANT.  121 

Opinion  that  the  rule  as  to  accepting  a  contract  was  exactly  the 
same  as  the  rule  as  to  sending  notice  of  dishonor  of  a  bill  of 
exchange.  He  then  referred  to  the  case  of  Adams  v.  Lindsell,' 
and  quoted  the  observation  of  Lord  Ellenborough,  C.J.  That 
case  therefore  appears  to  me  to  be  a  direct  decision  that  the 
contract  is  made  from  the  time  when  it  is  accepted  by  post." 
Leaving  Harris's  Case''  for  the  moment,  I  turn  to  Duncan  v. 
Topham,"  in  which  Cresswell,  J.,  told  the  jury  that  if  the  letter 
accepting  the  contract  was  put  into  the  post-oflice  and  lost  by 
the  negligence  of  the  post-office  authorities,  the  contract  wcnild 
nevertheless  be  complete  ;  and  both  he  and  Wikle,  C.J.,  and 
Maule,  J.,  seem  to  have  understood  this  ruling  to  have  been  in 
accordance  with  Lord  Cottenham's  opinion  in  Dunlop  v.  Hig- 
gins.^  That  opinion  therefore  appears  to  me  to  constitute  an 
authority  directly  binding  upon  us.  But  if  Dunlop  v.  Higgins* 
were  out  of  the  way,  Harris's  Case*  would  still  go  far  to  govern 
the  present.  There  it  was  held  that  the  acceptance  of  the  offer 
at  all  events  binds  both  parties  from  the  time  of  the  acceptance 
being  posted,  and  so  as  to  prevent  any  retractation  of  the  offer 
being  of  effect  after  the  acceptance  has  been  posted.  Now, 
whatever  in  abstract  discussion  may  be  said  as  to  the  legal 
notion  of  its  being  necessary,  in  order  to  the  effecting  of  a  valid 
and  binding  contract,  that  the  minds  of  the  parties  should  be 
brought  together  at  one  and  the  same  moment,  that  notion  is 
practically  the  foundation  of  English  law  upon  the  subject  of 
the  formation  of  contracts.  Unless  therefore  a  contract  con- 
stituted by  correspondence  is  absolutely  concluded  at  the 
moment  that  the  continuing  offer  is  accepted  by  the  person  to 
whom  the  offer  is  addressed,  it  is  difficult  to  see  how  the  two 
minds  are  ever  to  be  brought  together  at  one  and  the  same 
moment.  This  was  pointed  out  by  Lord  Ellenborough  in  the 
case  of  Adams  v.  Lindsell,'  which  is  recognized  authority  upon 
this  branch  of  the  law.  But,  on  the  other  hand,  it  is  a  principle 
of  law,  as  well  established  as  the  legal  notion  to  which  I  have 
referred,  that  the  minds  of  the  two  parties  must  be  brought 
together  by  mutual  communication.  An  acceptance,  which 
only  remains  in  the  breast  of  the  acceptor  without  being  actually 
and  by  legal  implication  communicated  to  the  offerer,  is  no 
binding  acceptance.  How,  then,  are  these  elements  of  law  to 
be  harmonized  in  the  case  of  contracts  formed  by  correspond- 
ence through  the  post  ?     I  see  no  better  mode  than  that  of  treat- 

1  I  B.  &  A.  68i.  *  I^id- 

3  Law  Rep.  7  Ch.  5S7.  *  Law  Rep.  7  Ch.  5S7. 

2  8  C.  B.  225.  "I  1  B.  &  A.  6S1. 
*  I  H.  L.  C.  381. 


122  HOUSEHOLD    INS.    CO.   V.    GRANT.  [CHAP.  I, 

ing  the  post-office  as  the  agent  of  both  parties,  and  it  was  so 
considered  by  Lord  Romilly  in  Hebb's  Case,'  when  in  the 
course  of  his  judgment  he  said  :  "  Dunlop  v.  Higgins'  decides 
that  the  posting  of  a  letter  accepting  an  offer  constitutes  a  bind- 
ing contract,  but  the  reason  of  that  is,  that  the  post-office  is  the 
common  agent  of  both  parties."  Alderson,  B.,  also  in  Stocken  v. 
Collin,'  a  case  of  notice  of  dishonor,  and  the  case  referred  to  by 
Lord  Cottenham,  says  :  "  If  the  doctrine  that  the  post-office  is 
only  the  agent  for  the  delivery  of  the  notice  were  correct,  no 
one  could  safely  avail  himself  of  that  mode  of  transmission." 
But  if  the  post-office  be  such  common  agent,  then  it  seems  to 
me  to  follow  that,  as  soon  as  the  letter  of  acceptance  is  deliv- 
ered to  the  post-office,  the  contract  is  made  as  complete  and 
final  and  absolutely  binding  as  if  the  acceptor  had  put  his  letter 
into  the  hands  of  a  messenger  sent  by  the  offerer  himself  as  his 
agent  to  deliver  the  offer  and  receive  the  acceptance.  What 
other  principle  can  be  adopted  short  of  holding  that  the  con- 
tract is  not  complete  by  acceptance  until  and  except  from  the 
time  that  the  letter  containing  the  acceptance  is  delivered  to 
the  offerer,  a  principle  which  has  been  distinctly  negatived  ? 
This  difficulty  was  attempted  to  be  got  over  in  the  British  and 
American  Telegraph  Co.  v.  Colson,*  which  was  a  case  directly 
on  all  fours  with  the  present,  Lpd.  in  which  Kelly,  C.B.,*  is  re- 
ported to  have  said  :  "  It  may  be  that  in  general,  though  not 
in  all  cases,  a  contract  takes  effect  from  the  time  of  acceptance 
and  not  from  the  subsequent  notification  of  it.  As  in  the  case 
now  before  the  Court,  if  the  letter  of  allotment  had  been  deliv- 
ered to  the  defendant  in  the  due  course  of  the  post  he  would 
have  become  a  shareholder  from  the  date  of  the  letter.  And  to 
this  effect  is  Potter  v.  Sanders.*  And  hence,  perhaps,  the  mis- 
take has  arisen  that  the  contract  is  binding  upon  both  parties 
from  the  time  when  the  letter  is  written  and  put  into  the  post, 
although  never  delivered  ;  whereas  although  it  may  be  binding 
from  the  time  of  acceptance,  it  is  only  binding  at  all  when  after- 
ward duly  notified."  But  with  deference  I  would  ask  how  a 
man  can  be  said  to  be  a  shareholder  at  a  time  before  he  was 
bound  to  take  any  shares,  or  to  put  the  question  in  the  form  in 
which  it  is  put  by  Mellish,  L.J.,  in  Harris's  Case,'  how  there 
can  be  any  relation  back  in  a  case  of  this  kind  as  there  may  be 
in  bankruptcy.  If,  as  the  Lord  Justice  said,  the  contract  after 
the  letter  has  arrived  in  time  is  to  be  treated  as  having  been 

'  Law  Rep.  4  Eq.  at  p.  12.  ^  Ibid.,  at  p.  115. 

"  I  H.  L.  C.  381.  6  6  Hare,  i. 

'  7  M.  &  W.  at  p.  516.  ■>  Law  Rep   586,  at  p.  596. 

*  Law  Rep.  6  Ex.  108. 


■SEC.  ir.]  HOUSEHOLD    IXS.    CO.    %>.    GRANT.     .  123 

made  from  the  time  the  letter  is  posted,  the  reason  is  that  the 
contract  was  actually  made  at  the  time  when  the  letter  was 
posted.  The  principle  indeed  laid  down  in  Harris's  Case'  as 
well  as  in  Dunlop  ?'.  Higgins,'  can  really  not  be  rcccnciled  with 
the  decision  in  tlie  British  and  American  Telegraph  Co.  v.  Col- 
son.^  James,  L.J.,  in  the  passage  I  have  already  quoted*  affirms 
the  proposition  that  when  once  the  acceptance  is  posted  neither 
party  can  afterward  escape  from  the  contract,  and  refers,  with 
approval,  to  Hebb's  Case."  There  a  distinction  was  taken  by 
the  Master  of  the  Rolls  that  the  company  chose  to  send  the 
letter  of  allotment  to  their  own  agent,  who  was  not  authorized 
by  the  applicant  for  shares  to  receive  it  on  his  behalf,  and  who 
never  delivered  it,  but  he  at  the  same  time  assumed  that  if,  in- 
stead of  sending  it  through  an  authorized  agent,  they  had  sent 
it  through  the  post-office,  the  applicant  would  have  been  bound, 
although  the  letter  had  never  been  delivered.  Mellish,  L.J., 
really  goes  as  far,  and  states  forcibly  the  reasons  in  favor  of 
this  view.  The  mere  suggestion  thrown  out  (at  the  close  of  his 
judgment,  at  p.  597),  when  stopping  shoit  of  actually  overrul- 
ing the  decision  in  the  British  and  American  Telegraph  Co.  v. 
Colson,®  that  although  a  contract  is  complete  when  the  letter 
accepting  an  offer  is  posted,  yet  it  may  be  subject  to  a  condition 
subsequent  that,  if  the  letter  does  not  arrive  in  due  course  of 
post,  then  the  parties  may  act  on  the  assumption  that  the  offer 
has  not  been  accepted,  can  hardly,  when  contrasted  with  the 
rest  of  the  judgment,  be  said  to  represent  his  own  opinion  on 
the  law  upon  the  subject.  The  contract,  as  he  says,'  is  actually 
made  when  the  letter  is  posted.  The  acceptor,  in  posting  the 
letter,  has,  to  use  the  language  of  Lord  Blackburn,  in  Brog- 
den  V.  Directors  of  Metropolitan  Ry.  Co.,"  "  put  it  out  of  his 
control  and  done  an  extraneous  act  which  clinches  the  matter, 
and  shows  beyond  all  doubt  that  each  side  is  bound."  How, 
then,  can  a  casualty  in  the  post,  whether  resulting  in  delay, 
which  in  commercial  transactions  is  often  as  bad  as  no  delivery, 
or  in  non-delivery,  unbind  the  parties  or  unmake  the  contract  ? 
To  me  it  appears  that  in  practice  a  contract  complete  upon  the 
acceptance  of  an  offer  being  posted,  but  liable  to  be  put  an  end 
to  by  an  accident  in  the  post,  would  be  more  mischievous  than 
a  contract  only  binding  upon  the  parties  to  it  upon  the  accept- 
ance actually  reaching  the  offerer,  and  I  can  see  no  principle  of 
law  from  which  such  an  anomalous  contract  can  be  deduced. 

'  Law  Rep.  586,  at  p.  596.  '  Law  Rep.  4  Kq.  9- 

»  1  H.  L.  C.  381.  •  Law  Rep.  6  Ex.  108. 

3  Law  Rep.  6  Ex.  108.  '  Z'''''^-.  -^^  P-  59f'- 

4  Harris's  Case,  Law  Rep.  7  Ch.  592.  "  2  App.  Cas.  666.  691. 


124  HOUSEHOLD   INS.    CO.   V.    GRANT.  [CHAP.  I. 

There  is  no  doubt  that  the  implication  of  a  complete,  final, 
and  absolutely  binding  contract  being  formed,  as  soon  as  the 
acceptance  of  an  offer  is  posted,  may  in  some  cases  lead  to 
inconvenience  and  hardship.  But  such  there  must  be  at  times 
in  every  view  of  the  law.  It  is  impossible  in  transactions  which 
pass  between  parties  at  a  distance,  and  have  to  be  carried  on 
through  the  medium  of  correspondence,  to  adjust  conflicting 
rights  between  innocent  parties,  so  as  to  make  the  consequences 
of  mistake  on  the  part  of  a  mutual  agent  fall  equally  upon  the 
shoulders  of  both.  At  the  same  time  I  am  not  prepared  to 
admit  that  the  implication  in  question  \\\\\  lead  to  any  great  or 
general  inconvenience  or  hardship.  An  offerer,  if  he  chooses, 
may  always  make  the  formation  of  the  contract  which  he  pro- 
poses dependent  upon  the  actual  communication  to  himself  of 
the  acceptance.  If  he  trusts  to  the  post  he  trusts  to  a  means  of 
communication  which,  as  a  rule,  does  not  fail,  and  if  no  answer 
to  his  offer  is  received  by  him,  and  the  matter  is  of  importance 
to  him,  he  can  make  inquiries  of  the  person  to  whom  his  offer 
was  addressed.  On  the  other  hand,  if  the  contract  is  not  finally 
concluded,  except  in  the  event  of  the  acceptance  actually  reach- 
ing the  offerer,  the  door  would  be  opened  to  the  perpetration 
of  much  fraud,  and,  putting  aside  this  consideration,  consider- 
able delay  in  commercial  transactions,  in  which  despatch  is,  as 
a  rule,  of  the  greatest  consequence,  would  be  occasioned  ;  for 
the  acceptor  would  never  be  entirely  safe  in  acting  upon  his 
acceptance  until  he  had  received  notice  that  his  letter  of  accept- 
ance had  reached  its  destination. 

Upon  balance  of  conveniences  and  inconveniences  it  seems  to 
me,  applying  w^ith  slight  alterations  the  language  of  the  Su- 
preme Court  of  the  United  States  in  Tayloe  v.  Merchants'  Fire 
Insurance  Co.,'  more  consistent  with  the  acts  and  declarations 
of  the  parties  in  this  case  to  consider  the  contract  complete  and 
absolutely  binding  on  the  transmission  of  the  notice  of  allot- 
ment through  the  post,  as  the  medium  of  communication  that 
the  parties  themselves  contemplated,  instead  of  postponing  its 
completion  until  the  notice  had  been  received  by  the  defendant. 
Upon  principle,  therefore,  as  well  as  authority,  I  think  that  the 
judgment  of  Lopes,  J.,  was  right  and  should  be  affirmed,  and 
that  this  appeal  should  therefore  be  dismissed. 

Baggallay,  L.J.  I  am  of  opinion  that  this  appeal  should  be 
dismissed. 

It  has  been  iestablished  by  a  series  of  authorities,  including 

Dunlop  V.  Higgins,  in  the  House  of  Lords,'  and  Harris's  Case,' 

in  the  Court  of  Appeal  in  Chancery,  that  if  an  offer  is  made  by 

;)  Howard  S.  Ct.  Rep.  390.         »  i  H.  L.  C.  381.  »  Law  Rep.  7  Ch.  5S7 


SEC,  I^.]  HOUSEHOLD   INS.   CO.   V.    GR.VNT.  1 25 

letter,  which  expressly  or  impliedly  authorizes  the  sendinir  of 
an  acceptance  of  such  offer  by  post,  and  a  letter  of  acceptance 
properly  addressed  is  posted  in  due  time,  a  complete  contract 
is  made  at  the  time  when  the  letter  of  acceptance  is  posted, 
.though  there  may  be  delay  in  its  delivery. 

The  question  involved  in  the  present  appeal  is,  whetlier  the 
same  principle  should  be  applied  in  a  case  in  which  the  letter 
of  acceptance,  though  duly  posted,  is  not  delivered  to  the  per- 
son to  whom  it  is  addressed.  Lopes,  J.,  was  of  opinion  tliat 
the  principle  was  applicable  to  such  a  case,  and  gave  judgment 
in  favor  of  the  plaintiffs,  and  from  such  judgment  the  present 
appeal  is  brought. 

In  support  of  his  appeal  the  defendant  relies  upon  the  de- 
cisions of  the  Court  of  Exchequer  in  the  case  of  the  British  and 
American  Telegraph  Co.  v.  Colson,'  to  which,  for  conciseness, 
I  will  refer  as  Colson's  Case."  I  propose  to  consider  Dunlop  v. 
Higgins'  and  Colson's  Case*  and  Harris's  Case'  somewhat  in 
detail,  for  the  purpose  of  ascertaining  whether  the  decision  of 
the  Court  of  Exchequer  in  Colson's  Case*  is  consistent  with  the 
decisions  of  the  House  of  Lords  and  of  the  Lords  Justices  in  the 
other  two  cases,  and  with  the  principles  upon  which  such  de- 
cisions were  based. 

The  circumstances  of  Dunlop  v.  Higgins'  were  as  follows  : 
After  a  preliminary  correspondence  Messrs.  Dunlop  &  Co.,  who 
were  merchants  at  Glasgow,  addressed  a  letter  on  January  28th, 
1845,  to  Messrs.  Higgins  &  Co.,  who  carried  on  business  at 
Liverpool,  offering  them  2000  tons  of  iron  pigs  at  655.  per  ton 
net.  This  letter  reached  Higgins  &  Co.  at  8  a.m.  on  Jan- 
uary 30th,  and  on  the  same  day  they  replied  by  letter  duly 
addressed  to  Dunlop  &  Co.  in  the  following  terms  :  "  We  will 
take  the  2000  tons  pigs  you  offer  us." 

It  appeared  by  the  evidence  that  the  first  post  for  Glasgow, 
after  the  receipt  by  Higgins  &  Co.  of  the  letter  of  Dunlop  &:  Co. 
left  Liverpool  at  3  p.m.  on  the  30th,  and  that  the  post  next 
following  left  at  i  a.m.  of  the  31st,  and  also  that  a  letter  de- 
spatched by  the  former  post  would  in  due  course  arrive  at 
Glasgow  at  2  p.m.  on  the  31st,  and  by  the  latter  in  time  to  be 
delivered  at  8  a.m.  on  February  ist.  The  letter  so  sent  by 
Higgins  &  Co.  was  posted  after  the  bags  were  made  up  for  the 
3  P.M.  post,  and  was  despatched  by  the  i  a.m.  post  on  the  31st. 
In   due  course   it  should   have  been   delivered   in  Glasgow  at 

1  Law  Rep.  7  Ex.  108.  *  Law  Rep.  7  Ch.  587. 

!  J3zd.  *  Law  Rep.  7  Ex.  io3. 

»  I  H.  L.  C.  381.  »  I  H.  L.  C.  331. 
*  Law  Rep.  7  Ex.  108. 


126  HOUSEHOLD   INS.    CO.   V.    GRANT.  [CHAP,  I. 

8  A.M.  on  February  ist,  but  it  was  not,  in  fact,  delivered  until 
2  P.M.  on  that  day,  the  frosty  state  of  the  weather  having  pre- 
vented the  train  from  Liverpool  arriving  at  Warrington  in  time 
to  meet  the  down  train  to  Glasgow.  It  appeared  also  that  Hig- 
gins  &  Co.,  by  mistake,  dated  their  letter  as  of  January  31st 
instead  of  January  30th.  On  February  ist,  after  the  receipt  of 
the  letter  of  Higgins  &  Co.  accepting  the  offer,  Dunlop  &  Co, 
wrote  to  Higgins  &  Co.  :  "  We  have  your  letter  of  yesterday's 
date,  but  are  sorry  that  we  cannot  now  enter  the  2000  tons,  our 
offer  not  being  accepted  in  time."  The  iron  was  not  delivered^ 
and  Higgins  &  Co.  brought  their  action  for  breach  of  contract. 
The  defence  of  Dunlop  &  Co.  was  that  their  letter  of  the  28th 
should  have  been  answered  by  the  first  post — viz.,  by  that  which 
left  Liverpool  at  3  p.m.  on  the  30th,  but  that  at  any  rate  they 
were  not  bound  to  wait  for  a  third  post  delivered  at  Glasgow 
at  2  P.M.  on  February  ist. 

On  the  trial  before  the  Lord  Justice  General,  he  admitted 
evidence  to  show  that  the  letter  of  acceptance,  though  dated 
the  31st,  was  in  fact  written  and  posted  on  January  30th,  and 
he  directed  the  jury  that  if  Higgins  &  Co.  posted  their  accept- 
ance of  the  offer  in  due  time,  according  to  the  usage  of  trade, 
they  were  not  responsible  for  any  casualties  in  the  post-office 
establishment. 

It  is  important  to  bear  in  mind  the  terms  of  this  direction,  as 
it  formed  the  substantial  subject  of  appeal,  first  to  the  Court  of 
Session  and  thence  to  the  House  of  Lords.  The  jury  found  for 
the  plaintiffs — that  is  to  say,  they  found  as  a  fact  that  the  letter 
of  Higgins  &  Co.  was  posted  in  due  time  according  to  the  usage 
of  the  parties  in  their  business  transactions,  and  having  so 
found,  they,  under  the  direction  of  the  judge,  gave  their  verdict 
for  the  plaintiffs.  Exceptions  were  therefore  taken  by  the  de- 
fendants, and,  among  other  grounds  of  exception,  they  objected 
to  the  admission  of  evidence  as  to  the  posting  of  the  letter  on 
January  30th,  and  to  the  direction  of  the  Lord  Justice  General, 
to  which  I  have  just  referred.  The  exceptions  were  overruled 
by  the  judges  of  the  First  Division,  and  from  their  decision  the 
defendants  appealed  to  the  House  of  Lords  ;  the  appeal  was 
dismissed,  and  the  ruling  and  direction  of  the  Lord  Justice 
General  were  upheld. 

Though  the  question  in  dispute  between  the  parties  was 
whether  Higgins  &  Co.  were  responsible  for  the  delay  in  the 
delivery  of  the  post,  it  is  observed  that  the  direction  of  the 
judge  went  further,  for  he  ruled  that  if  their  letter  was  duly 
posted  they  were  not  responsible  for  any  casualties  in  the  post- 
office  establishment.      During  the  argument  Lord   Cottenham 


SEC.  If.]  HOUSEHOLD    INS.    CO.    f.    (;K.\NT.  12/ 

said  :  "  The  question  is  whether  putting  in  the  post  is  a  virtual 
acceptance,  thougli  by  the  accident  of  the  post  it  does  not 
arrive  ;"  and,  in  moving  the  judgment  of  the  House,  he  ob- 
served :  "  If  a  man  does  all  that  he  can  do,  that  is  all  that  is 
called  for  ;  if  there  is  a  usage  of  trade  to  accept  such  an  offer 
and  to  forward  it  by  means  of  the  post,  and  if  the  party  accept- 
ing the  offer  puts  his  letter  into  the  post  on  the  correct  day,  has 
he  not  done  everything  he  was  bound  to  do  ;  how  can  he  be 
responsible  for  that  over  which  he  has  no  control  ?"  There  is 
nothing  in  the  language  of  Lord  Cottenham  to  suggest  any  dis- 
tinction between  a  case  in  which  there  is  delay  in  the  delivery 
of  the  letter  and  one  in  which  the  letter  is  not  delivered  at  all. 
But  Lord  Cottenham  went  on  to  illustrate  his  meaning,  and  did 
so  in  the  following  terms  :  "  It  is  a  very  frequent  occurrence 
that  a  party  having  a  bill  of  exchange  which  he  tenders  for  pay- 
ment to  the  acceptor,  and  acceptance  is  refused,  is  bound  to 
give  the  earliest  notice  to  the  drawer.  That  person  may  be 
resident  many  miles  distant  from  him  ;  if  he  puts  a  letter  into 
the  post  at  the  right  time  it  has  been  held  quite  sufficient  ;  he 
has  put  the  letter  into  the  post,  and  whether  that  letter  be 
delivered  or  not  is  a  matter  quite  immaterial,  because  for  acci- 
dents happening  at  the  post-oflfice  he  is  not  responsible."  Hav- 
ing regard  to  the  passages  in  Lord  Cottenham's  judgment,  it 
appears  to  me  impossible  to  doubt  that  the  proposition  which 
he  intended  to  affirm,  and  which  was,  in  fact,  his  ratio  decidendi, 
was  this,  that  when  the  letter  accepting  the  offer  was  duly 
posted,  the  contract  was  complete,  although  it  might  be  delayed 
in  its  delivery  or  might  never  reach  the  hands  of  the  party 
making  the  offer. 

I  desire,  however,  to  guard  myself  against  being  considered 
as  participating  in  a  view  of  the  effect  of  the  decision  in  Dun- 
lop  V.  Higgins'  which  has  been  sometimes  adopted,  and  as  I 
think  without  sufficient  reason — viz.,  that  in  all  cases  in  which 
an  offer  is  accepted  by  a  letter  addressed  to  the  party  making 
the  offer  and  duly  posted,  there  is  a  binding  contract  from  the 
time  when  such  letter  is  posted.  I  do  not  take  this  view  of  the 
effect  of  the  decision  in  Dunlop  v.  Higgins.^  On  the  contrary, 
I  think  that  the  principle  established  by  that  case  is  limited  in 
its  application  to  cases  in  which  by  reason  of  general  usage,  or 
of  the  relations  between  the  parties  to  any  particular  trans- 
actions, or  of  the  terms  in  which  the  offer  is  made,  the  accept- 
ance of  such  offer  by  a  letter  through  the  post  is  expressly  or 
impliedly  authorized.  In  Dunlop  v.  Higgins'  the  previous  cor- 
respondence between  the  two  firms  was,  in  my  opinion,  quite 
1  I  H.  L.  C.  381.  «  Ibid.  '  Ibid 


128  HOUSEHOLD    INS.    CO.    V.    GRANT.  [CHAP.  I. 

sufficient,  not  only  to  authorize  the  sending  of  the  acceptance 
by  post,  but  to  point  to  it  as  the  only  mode  in  which,  under  the 
circumstances,  such  acceptance  could  be  communicated,  and  it 
was  in  consequence  of  the  jury  finding  it  as  a  fact  that  Hig- 
gins  &  Co.  posted  their  acceptance  of  the  offer  to  Dunlop  &  Co. 
in  due  time,  according  to  the  usage  of  their  business  trans- 
actions, that  they  found  a  verdict  for  the  plaintiffs  under  the 
direction  of  the  judge.  The  principle  involved  in  Dunlop  v. 
Higgins'  was  recognized  by  Cresswell,  J.,  upon  the  trial  of  the 
action  in  Duncan  v.  Topham  ;^  upon  that  occasion  he  directed 
the  jury  that,  if  the  letter  accepting  the  contract  was  put  into 
the  post-office  and  lost  through  the  negligence  of  the  post-office 
authorities,  the  contract  would  nevertheless  be  complete  ;  and 
upon  an  application  in  the  same  case,  to  make  absolute  a  rule 
which  had  been  obtained  for  a  new  trial,  though  the  new  trial 
was  ordered  upon  other  grounds,  Wilde,  C.J.,  and  Maule,  J., 
expressed  views  to  the  same  effect  as  the  direction  of  Cress- 
well,  J.;  in  that  case  the  letter  never  reached  the  hands  of  the 
person  to  whom  it  was  addressed. 

I  proceed  to  consider  the  circumstances  of  Colson's  Case;' 
they  were  as  follows.  On  February  13th,  1867,  the  defendant 
sent  an  application  to  the  company,  through  the  post,  for  an 
allotment  of  fifty  shares,  undertaking  by  his  letter  to  pay  the 
sum  of  ^2  per  share  on  whatever  number  should  be  allotted  to 
him  ;  on  the  15th  of  the  same  month  fifty  shares  were  allotted 
to  him,  and  a  letter  informing  him  of  such  allotment  was  posted 
to  his  address,  as  given  in  his  letter  of  application  for  shares — 
viz.,  31  Charlotte  Street,  Fitzroy  Square. 

Now  a  letter  of  application  for  shares  in  a  public  company, 
expressed  in  the  usual  form,  must,  I  think,  having  regard  to 
the  usage  in  such  matters,  be  considered  as  authorizing  the 
acceptance  of  the  offer  by  a  letter  through  the  post,  as  was 
expressed  by  Lopes,  J.,  in  the  case  now  under  consideration  ; 
such  would  be  the  ordinary  mode  of  transmission  of  an  allot- 
ment letter.  The  defendant,  however,  swore,  and  there  was  no 
reason  to  doubt  the  truth  of  his  statement,  that  he  never  re- 
ceived the  letter  of  allotment  ;  that  another  person  of  the  same 
name  lived  opposite  to  him  in  the  same  street  ;  about  that  time 
the  numbers  in  the  street  were  changed,  his  own  being  altered 
from  31  to  87  ;  and  that  several  letters  then  sent  to  him  had 
never  reached  him.  On  February  28th  the  plaintiffs,  on  being 
informed  that,  the  letter  of  allotment  had  not  reached  the  de- 
fendant, sent  him  a  duplicate,  which  he  refused  to  accept  ;  the 
action  was  then  brought  by  the  company  to  recover  the  ^2  per 
»  I  H.  L.  C.  381.  '  8  C.  B.  225.  3  Law  Rep.  7  Ex.  108. 


SEC.  ic]  HOUSEHOLD    INS.   CO.   V.    GRANT.  1 29 

share.  The  jury  found  that  the  letter  of  allotment  was  posted 
to  the  defendant  on  February  14th,  but  that  he  never  received 
it,  and  that  the  second  notice  was  not  sent  in  a  reasonable  time. 
The  learned  judge,  Bramwell,  B.,  thereupon  directed  the  ver- 
■dict  to  be  entered  for  the  plaintiffs,  but  gave  tlie  defendant 
leave  to  move  to  have  it  entered  for  himself  on  the  authority  of 
Finucane's  Case,'  which  , had  recently  been  decided  by  Lord 
Romilly.  A  rule  «/>/ was  accordingly  obtained,  and  cause  was 
shown  on  November  17th,  1870,  the  Court  being  composed  (jf 
the  Lord  Chief  Baron  and  Bramwell  and  Pigott,  BB.  Judg- 
ment was  reserved,  and  on  January  31st,  187 1,  the  rule  was 
made  absolute  to  enter  the  verdict  for  the  defendant. 

The  Lord  Chief  Baron,  in  the  course  of  his  judgment,  ex- 
pressed himself  as  follows  :  "  It  appears  to  me  that  if  one  pro- 
poses to  another  by  a  letter  through  the  post  to  enter  into  a 
contract  for  the  sale  or  purchase  of  goods,  or,  as  in  this  case, 
of  shares  in  a  company,  and  the  proposal  is  accepted  by  letter 
and  the  letter  put  into  the  post,  the  party  having  proposed  to 
contract  is  not  bound  by  the  acceptance  of  it  until  the  letter  of 
acceptance  is  delivered  to  him,  or  otherwise  brought  to  his 
knowledge,  except  in  certain  cases  where  the  non-receipt  of  the 
acceptance  has  been  occasioned  by  his  own  act  or  default." 
Now,  unless  the  proposition  so  put  by  the  Lord  Chief  Baron  is 
to  be  read  with  some  qualifications,  it  can  hardly  be  considered 
as  consistent  with  the  decision  in  Dunlop  v.  Higgins,"  as  such 
decision  has  ordinarily  been  understood.  The  view,  however, 
taken  by  him  of  that  decision  does  not  appear  to  be  in  accord- 
ance with  that  generally  taken  ;  for  after  alluding  to  the  cir- 
cumstances of  Dunlop  v.  Higgins,'  he  proceeded  to  express  his 
entire  concurrence  with  the  decision  of  the  Court  of  Session 
'and  in  the  affirmance  of  it  by  the  House  of  Lords,  upon  the 
ground  that,  in  his  opinion,  the  acceptance  of  the  offer  reached 
Dunlop  &  Co.  in  time,  and  that  the  House  of  Lords  had  acted 
upon  the  same  view  of  the  circumstances  of  the  case  ;  the  dis- 
tinction which  he  recognized  between  that  case  and  the  one 
then  under  consideration  consisted  in  this,  that  whereas  the 
letter  of  acceptance  in  Dunlop  v.  Higgins*  was  received  by  the 
party  making  the  offer  in  due  time,  that  in  Colson's  Case*  never 
reached  its  destination.  Pigott,  B.,  did  not  give  a  separate 
judgment,  but  it  was  stated  that  he  concurred  in  that  of  the 
Lord  Chief  Baron.  Bramwell,  B.,  also  commented  upon  the 
circumstances  of  Dunlop  v.  Higgins,*  and  referred  to  several 
passages  in  the  judgment  of  Lord  Cottenham,  including  those 

1  17  W.  R.  813.  3  /<^/</.  '  Law  Rep.  7  E.x.  108. 

'  I  H.  L.  C.  381.  *  Ibid.  «  I  H.  L.  C.  381. 


130  HOUSEHOLD   INS.    CO.    V.    GRANT.  [CHAP.  I. 

which  I  have  quoted,  and  he  then  expressed  himself  as  follows  : 
"  It  seems  to  me  that  the  correct  way  to  deal  with  those  expres- 
sions is  to  refer  them  to  the  subject-matter,  and  not  to  consider 
them  as  laying  down  such  a  proposition  as  the  plaintiffs  have 
contended  for,  but  that  when  the  post  may  be  used  between  the 
parties  it  must  be  subject  to  those  delays  which  are  unavoid- 
able." It  would  appear,  then,  that  all  the  judges  in  the  Court 
of  Exchequer  treated  the  case  of  Dunlop  v.  Higgins'  as  one  de- 
cided upon  its  special  circumstances,  and  as  not  enunciating 
any  general  principle  beyond  what  was  necessary  for  dealing 
with  such  circumstances.  I  am  unable  to  concur  in  this  view. 
It  may  be  that  there  were  special  circumstances  in  the  case  of 
Dunlop  V.  Higgins^  sufficient  to  have  justified  the  decision  of 
the  House,  irrespective  of  the  application  of  the  principle  in- 
volved in  the  direction  of  the  Lord  Justice  General  ;  but  the 
decision  was  not  expressed  to  be  based,  and  apparently  was  not 
intended  to  be  based,  upon  any  such  ground,  but  upon  an 
approval  and  of  the  direction  of  that  learned  judge. 

After  a  careful  consideration  of  the  judgments  of  the  Lord 
Chief  Baron  and  of  Mr.  Baron  Bramwell,  I  can  come  to  no 
other  conclusion  than  that  the  decision  in  Colson's  Case'  is 
inconsistent  with  that  of  the  House  of  Lords  in  Dunlop  v. 
Higgins.*  If  I  am  right  in  this  conclusion  it  is  not  for  me  to 
choose  between  the  two  ;  I  am  bound  by  the  authority  of  the 
decision  of  the  House  of  Lords. 

But  I  pass  on  to  consider  the  circumstances  of  Harris's  Case,^ 
which  came  before  the  Lords  Justices  in  1872.  On  March  5th, 
1866,  Lewis  Harris,  of  Dublin,  applied  to  the  directors  of  the 
Imperial  Land  Company  of  Marseilles,  by  a  letter  in  the  usual 
form,  for  an  allotment  of  200  shares,  undertaking  by  his  letter 
to  accept  that  or  any  less  number  of  shares  that  might  be 
allotted  to  him.  The  directors  allotted  to  him  100  shares,  and 
early  on  the  morning  of  March  i6th  posted  a  letter  to  him  at  his 
address,  as  given  in  his  letter  of  application,  which  was  received 
by  him  at  Dublin.  He  had,  however,  in  the  interval  between 
the  posting  and  the  delivery  of  the  letter  giving  him  notice  of 
the  allotment,  written  to  the  directors  withdrawing  his  applica- 
tion and  declining  to  accept  any  shares.  Upon  an  order  being 
made  to  wind  up  the  company,  Mr.  Harris  was  placed  upon  the 
list  of  contributories  in  respect  of  the  100  shares,  and  a  sum- 
mons having  been  taken  out  by  him  to  have  his  name  removed 
from  the  list,  such  summons  was  dismissed  by  Malins,  V.C. 
From  such  dismissal  Mr.  Harris  appealed,  but  the  decision  of  the 

»  I  H.  L.  C.  381.  »  ibid.  8  Law  Rep.  6  Ex.  108. 

*  1  H.  L.  C.  381.  «  Law  Rep.  7  Ch    5S7. 


SEC.  ir.]  HOUSEHOLD    INS.    CO.    f.    GRANT.  I3T 

Vice-Chancellor  was  upheld.  In  giving  judgment,  James,  L.J., 
said  that  it  appeared  to  him  that  the  contract  was  completed 
the  moment  the  notice  of  allotment  was  committed  to  the  post 
and  a  similar  view  was  expressed  by  Mellish,  L.J.,  who,  after 
referring  to  the  decision  of  the  Court  of  Exchequer  in  Colson's 
Case,'  and  stating  that  he  had  great  difficulty  in  reconciling  it 
with  that  of  the  House  of  Lords  in  Dunlop  7>.  Higgins,'  ob- 
served, with  reference  to  the  last-mentioned  case,  that  the  real 
question  J:hen  before  the  House  of  Lords  was,  whether  the 
ruling  of  the  Lord  Justice  General  was  correct,  and  that  the 
House  of  Lords  held  that  it  was. 

It  is  doubtless  true,  as  was  observed  by  both  the  Lords  Jus- 
tices, that  the  decision  in  Harris's  Case^  was  not  necessarily 
inconsistent  with  that  of  the  Court  of  Exchequer  in  Colson's 
Case,*  but  it  is,  I  think,  clear  that,  although  the  Lords  Justices 
did  not  feel  themselves  called  upon  to  express  any  dissent  from 
the  decision  of  the  Court  of  Exchequer,  as  it  was  not  necessary 
for  the  decision  of  the  case  before  them  that  they  should  do  so, 
they  by  no  means  recognized  the  propriety  of  the  distinction 
drawn  by  the  Court  of  Exchequer  between  Dunlop  v.  Higgins" 
and  Colson's  Case."  I  do  not  think  it  necessary  to  refer  to 
Finucane's  Case'  and  other  cases  decided  by  Lord  Romilly,  in 
which  he  held  that  the  posting  of  a  letter  of  allotment  which 
never  reached  its  destination  was  not  sufficient  to  constitute  the 
applicant  a  contributory,  further  than  to  observe  that  in  Finu- 
cane's Case,'  Dunlop  v.  Higgins,'  and  Duncan  z'.  Topham'"  were 
not  cited,  and  that  in  the  others  the  circumstances  were  such 
that  the  Master  of  the  Rolls  deemed  himself  justified  in  not 
following  the  decision  in  Dunlop  v.  Higgins."  Indeed,  in  one 
of  those  cases,  Hebb's  Case,'^  he  distinctly  recognized  the  author- 
ity of  the  decision  in  Dunlop  v.  Higgins,"^  which  he  considered 
to  have  been  decided  upon  the  ground  that  the  post-office  was 
the  common  agent  of  both  parties.  For  the  reasons  which  I 
have  assigned,  I  am  of  opinion  that  the  principle  established  by 
the  decision  of  the  House  of  Lords  in  Dunlop  z'.  Higgins'*  is 
applicable  to  the  case  now  under  consideration,  and  that  the 
decision  of  Lopes,  J.,  should  be  affirme4.  I  desire,  however, 
to  add  that  I  have  felt  myself  bound  by  authority.  My  own 
convictions  are  entirely  in  accordance  with  the  principles  which 
I  consider  to  have  been  established  by  authority  ;  and  in  saying 

'  Law  Rep.  6.  Ex.  108.  «  Law  Rep.  6  Ex.  108.  "  i  H.  L.  C.  381. 

'  I  H.  L.  C.  381.  ■'  17  W.  R.  813.  '5  Law  Rep.  4  Eq.  9. 

3  Law  Rep.  7  Ch.  587.  « /d/d.  "  i  H.  L.  C.  3S1. 

*  Law  Rep.  6  Ex.  108.  ^  i  H.  L.  C.  381.  '•*  Z^^'^. 

*  1  H.  L.  C.  381.  ">  8  C.  B.  225. 


132  HOUSEHOLD    INS.    CO.   V.    GRANT.  [CHAP.  I. 

this,  I  bear  in  mind  as  well  the  very  forcible  remarks  made  by 
the  Lord  Chief  Baron  and  my  present  colleague  upon  the  sub- 
ject of  the  mischievous  consequences  that  might  ensue  from 
an  adoption  of  these  principles  in  certain  suggested  cases,  as 
equally  forcible  remarks  made  by  Mellish,  L.J.,  as  to  the  like 
consequences  which  would  ensue  in  other  cases  if  those  prin- 
ciples were  departed  from. 

Bramwell,  L.J.  The  question  in  this  case  is  not  whether 
the  post-office  was  a  proper  medium  of  communication  from  the 
plaintiffs  to  the  defendant.  There  is  no  doubt  that  it  is  so  in 
all  cases  where  personal  service  is  not  required.  It  is  an  ordi- 
nary mode  of  communication,  and  every  person  who  gives  any 
one  the  right  to  com.municate  with  him  gives  the  right  to  com- 
municate in  an  ordinary  manner,  and  so  in  this  way  and  to  this 
extent,  that  if  an  offer  were  made  by  letter  in  the  morning  to  a 
person  at  a  place  within  half  an  hour's  railway  journey  of  the 
offerer,  I  should  say  that  an  acceptance  by  post,  though  it  did 
not  reach  the  offerer  till  the  next  morning,  would  be  in  time. 
Nor  is  the  question  whether,  when  the  letter  reaches  an  offerer, 
the  latter  is  bound  and  the  bargain  made  from  the  time  the 
letter  is  posted  or  despatched,  whether  by  post  or  otherwise. 
The  question  in  this  case  is  different.  I  will  presently  state 
what  in  my  judgment  it  is.  Meanwhile  I  wish  to  mention  some 
elementary  propositions  which,  if  carefully  borne  in  mind,  will 
assist  in  the  determination  of  this  case  : 

First.  Where  a  proposition  to  enter  into  a  contract  is  made 
and  accepted,  it  is  necessary,  as  a  rule,  to  constitute  the  con- 
tract that  there  should  be  a  communication  of  that  acceptance 
to  the  proposer,  per  Brian,  C.J.,  and  Lord  Blackburn  :  Brog- 
den  V.  Metropolitan  Py.  Co.' 

Secondly.  That  the  present  case  is  one  of  proposal  and 
acceptance. 

Thirdly.  That  as  a  consequence  of  or  involved  in  the  first 
proposition,  if  the  acceptance  is  written  or  verbal — i.e.^  is  by 
letter  or  message,  as  a  rule,  it  must  reach  the  proposer  or  there 
is  no  communication,  and  so  no  acceptance  of  the  offer. 

Fourthly.  That  if  there  is  a  difference  where  the  acceptance 
is  by  a  letter  sent  through  the  post  which  does  not  reach  the 
offerer,  it  must  be  by  virtue  of  some  general  rule  or  some  par- 
ticular agreement  of  the  parties.  As,  for  instance,  there  might 
be  an  agreement  that  the  acceptance  of  the  proposal  may  be  by 
sending  the  article  offered  by  the  proposer  to  be  bought,  or 
hanging  out  a  flag  or  sign  to  be  seen  by  the  offerer  as  he  goes 
by,  or  leaving  a  letter  at  a  certain  place,  or  any  other  agreed 
'  2  App.  Cas.  at  p.  692. 


SEC.  ic]  HOUSEHOLD    INS.    CO.   V.    GRANT.  1 33 

mode,  and  in  the  same  way  there  might  be  an  agreement  that 
dropping  a  letter  in  a  post  pillar-box  or  other  place  of  reception 
should  suffice. 

Fifthly.  That  as  there  is  no  such  special  agreement  in  this 
case,  the  defendant,  if  bound,  must  be  bound  by  some  general 
rule  which  makes  a  difference  when  the  post-office  is  employed 
as  the  means  of  communication. 

Sixthly.  That  if  there  is  any  such  general  rule  applicable  to 
the  communication  of  the  acceptance  of  offers,  it  is  equally 
applicable  to  all  communications  that  may  be  made  by  post. 
Because,  as  I  have  said,  the  question  is  not  whether  this  com- 
munication may  be  made  by  post.  If,  therefore,  posting  a  letter 
which  does  not  reach  is  a  sufficient  communication  of  accept- 
ance of  an  offer,  it  is  equally  a  communication  of  everything 
else  which  may  be  communicated  by  post — e.g.,  notice  to  quit. 
It  is  impossible  to  hold,  if  I  offer  my  landlord  to  sell  him  some 
hay,  and  he  writes  accepting  my  offer,  and  in  the  same  letter 
gives  me  notice  to  quit,  and  posts  his  letter,  which,  however, 
does  not  reach  me,  that  he  has  communicated  to  me  his  accept- 
ance of  my  offer,  but  not  his  notice  to  quit.  Suppose  a  man 
has  paid  his  tailor  by  check  or  bank-note,  and  posts  a  letter  con- 
taining a  check  or  bank-note  to  his  tailor,  which  never  reaches, 
is  the  tailor  paid  ?  If  he  is,  would  he  be  if  he  had  never  been 
paid  before  in  that  way  ?  Suppose  a  man  is  in  the  habit  of 
sending  checks  and  bank-notes  to  his  banker  by  post,  and  posts 
a  letter  containing  checks  and  bank-notes,  which  never  reaches. 
Is  the  banker  liable  ?  Would  he  be  if  this  was  the  first  instance 
of  a  remittance  of  the  sort  ?  In  the  cases  I  have  supposed,  the 
tailor  and  banker  may  have  recognized  this  mode  of  remittance 
by  sending  back  receipts  and  putting  the  money  to  the  credit 
of  the  remitter.  Are  they  liable  with  that  ?  Are  they  liable 
without  it  ?  The  question  then  is.  Is  posting  a  letter  which  is 
never  received  a  communication  to  the  person  addressed,  or  an 
equivalent,  or  something  which  dispenses  with  it  ?  It  is  for 
those  who  say  it  is  to  make  good  their  contention.  I  ask  why 
is  it  ?  My  answer  beforehand  to  any  argument  that  may  be 
urged  is,  that  it  is  not  a  communication,  and  that  there  is  no 
agreement  to  take  it  as  an  equivalent  for  or  to  dispense  with  a 
communication.  That  those  who  affirm  the  contrary  say  the 
thing  which  is  not.  That  if  Brian,  C.J.,  had  had  to  adjudicate 
on  the  case,  he  would  deliver  the  same  judgment  as  that  re- 
ported. That  because  a  man,  who  may  send  a  communication 
by  post  or  otherwise,  sends  it  by  post,  he  should  bind  the  person 
addressed,  though  the  communication  never  reaches  him,  while 
he  would  not  so  bind  him  if  he  had  sent  it  by  hand,  is  impos- 


134  HOUSEHOLD    INS.    CO.   V.    GRANT.  [CHAP.  I, 

sible.  There  is  no  reason  in  it  ;  it  is  simply  arbitrary.  I  ask 
whether  any  one  who  thinks  so  is  prepared  to  follow  that  opin- 
ion to  its  consequence  ;  suppose  the  offer  is  to  sell  a  particular 
chattel,  and  the  letter  accepting  it  never  arrives,  is  the  property 
in  the  chattel  transferred  ?  Suppose  it  is  to  sell  an  estate  or 
grant  a  lease,  is  the  bargain  completed  ?  The  lease  might  be 
such  as  not  to  require  a  deed,  could  a  subsequent  lessee  be 
ejected  by  the  would-be  acceptor  of  the  offer  because  he  had 
posted  a  letter.  Suppose  an  article  is  advertised  at  so  much, 
and  that  it  would  be  sent  on  receipt  of  a  post-office  order.  Is 
it  enough  to  post  the  letter?  If  the  word  "receipt"  is  relied 
on,  is  it  really  meant  that  that  makes  a  difference  ?  If  it  should 
be  said  let  the  offerer  wait,  the  answer  is,  may  be  he  may  lose 
his  market  meanwhile.  Besides,  his  offer  may  be  by  advertise- 
ment to  all  mankind.  Suppose  a  reward  for  information,  infor- 
mation posted  does  not  reach,  some  one  else  gives  it  and  is 
paid,  is  the  offerer  liable  to  the  first  man  ? 

It  is  said  that  a  contrary  rule  would  be  hard  on  the  would-be 
acceptor,  who  may  have  made  his  arrangements  on  the  footing 
that  the  bargain  was  concluded.  But  to  hold  as  contended 
would  be  equally  hard  on  the  offerer,  who  may  have  made  his 
arrangements  on  the  footing  that  his  offer  was  not  accepted  ; 
his  non-receipt  of  any  communication  may  be  attributable  to 
the  person  to  whom  it  was  made  being  absent.  What  is  he  to 
do  but  to  act  on  the  negative,  that  no  communication  has  been 
made  to  him  ?  Further,  the  use  of  the  post-office  is  no  more 
authorized  by  the  offerer  than  the  sending  an  answer  by  hand, 
and  all  these  hardships  would  befall  the  person  posting  the 
letter  if  he  sent  it  by  hand.  Doubtless  in  that  case  he  would 
be  the  person  to  suffer  if  the  letter  did  not  reach  its  destination. 
Why  should  his  sending  it  by  post  relieve  him  of  the  loss  and 
cast  it  on  the  other  party.  It  was  said,  if  he  sends  it  by  hand 
it  is  revocable,  but  not  if  he  sends  it  by  post,  which  makes  the 
difference.  But  it  is  revocable  when  sent  by  post,  not  that  the 
letter  can  be  got  back,  but  its  arrival  might  be  anticipated  by 
a  letter  by  hand  or  telegram,  and  there  is  no  case  to  show  that 
such  anticipation  would  not  prevent  the  letter  from  binding. 
It  would  be  a  most  alarming  thing  to  say  that  it  would.  That 
a  letter  honestly  but  mistakenly  written  and  posted  must  bind 
the  writer  if  hours  before  its  arrival  he  informed  the  person 
addressed  that  it  was  coming,  but  was  wrong  and  recalled  ; 
suppose  a  false  but  honest  character  given,  and  the  mistake 
found  out  after  the  letter  posted,  and  notice  that  it  was  wrong 
given  to  the  person  addressed. 

Then,  as  was  asked,   is  the  principle  to  be  applied  to  tele- 


SEC.  ic]  HOUSEHOLD    INS.    CO.   V.    GRANT.  I35 

grams  ?  Further,  it  seems  admitted  that  if  the  proposer  said, 
"  Unless  I  hear  from  you  by  return  of  post  the  offer  is  with- 
drawn," that  the  letter  accepting  it  must  reach  him  to  bind 
him.  There  is,  indeed,  a  case  recently  reported  in  the  Times, 
before  the  Master  of  the  Rolls,  where  the  offer  was  to  be 
accepted  within  fourteen  days,  and  it  is  said  to  have  been  held 
that  it  was  enough  to  post  the  letter  on  the  14th,  though  it 
would  and  did  not  reach  the  offerer  till  the  15th.  Of  course 
there  may  have  been  something  in  that  case  not  mentioned  in 
the  report.  But  as  it  stands  it  comes  to  this,  that  if  an  offer  is 
to  be  accepted  in  June,  and  there  is  a  month's  post  between  the 
places,  posting  the  letter  on  June  30th  will  suffice,  though  it 
does  not  reach  till  July  31st  ;  but  that  case  does  not  affect  this. 
There  the  letter  reached,  here  it  has  not.  If  it  is  not  admitted 
that  "  unless  I  hear  by  return  the  offer  is  withdrawn"  makes 
the  receipt  of  the  letter  a  condition,  it  is  to  say  an  express  con- 
dition goes  for  naught.  If  it  is  admitted,  is  it  not  what  every 
letter  says  ?  Are  there  to  be  fine  distinctions,  such  as,  if  the 
words  are  "  unless  I  hear  from  you  by  return  of  post,"  etc.,  it 
is  necessary  the  letter  should  reach  him,  but  "  let  me  know  by 
return  of  post,"  it  is  not  ;  or  if  in  that  case  it  is,  yet  it  is  not 
where  there  is  an  offer  without  those  words.  Lord  Blackburn 
says  that  Mellish,  L.J.,  accurately  stated  that  where  it  is  ex- 
pressly or  impliedly  stated  in  the  offer,  "  you  may  accept  the 
offer  by  posting  a  letter,"  the  moment  you  post  this  letter  the 
offer  is  accepted.  I  agree  ;  and  the  same  thing  is  true  of  any 
other  mode  of  acceptance  offered  with  the  offer  and  acted  on — 
as  firing  a  cannon,  sending  off  a  rocket,  give  your  answer  to  my 
servant  the  bearer.  Lord  Blackburn  was  not  dealing  with  the 
question  before  us  ;  there  was  no  doubt  in  the  case  before  him 
that  the  letter  had  reached.  As  to  the  authorities,  I  shall  not 
re-examine  those  in  existence  before  the  British  and  American 
Telegraph  Co.  v.  Colson.'  But  I  wish  to  say  a  word  as  to  Dun- 
lop  V.  Higgins  ;^  the  whole  difficulty  has  arisen  from  some  ex- 
pressions in  that  case.  Mr.  Finlay's  argument  and  reference 
to  the  case  when  originally  in  the  Scotch  Court  has  satisfied  me 
that  Dunlop  v.  Higgins^  decided  nothing  contrary  to  the  de- 
fendant in  this  case.  Mellish,  L.J.,  in  Harris's  Case,*  says  : 
"  That  case  is  not  a  direct  decision  on  the  point  before  us."  It 
is  true,  he  adds,  that  he  has  great  difficulty  in  reconciling  the 
case  of  the  British  and  American  Telegraph  Co.  v.  Colson'  with 
Dunlop  V.  Higgins."  I  do  not  share  that  difficulty.  I  think 
they  are    perfectly    reconcilable,    and    that    I    have    shown   so. 

1  Law  Rep.  6  Ex.  108.        ^  Ibid.  *  Law  Rep.  6  Ex.  loS. 

2  I  H.  L.  C.  381.  *  Law  Rep.  7  Ch.  596.        «  1  H.  L.  C.  3S1. 


136  HOUSEHOLD    INS.    CO.    V.   GRANT.  [CHAP.  I. 

Where  a  posted  letter  arrives,  the  contract  is  complete  on  the 
posting.  So  where  a  letter  sent  by  hand  arrives,  the  contract 
is  complete  on  the  writing  and  delivery  to  the  messenger.  Why 
not  ?  All  the  extraordinary  and  mischievous  consequences 
which  the  Lord  Justice  points  out  in  Harris's  Case'  might  hap- 
pen if  the  law  were  otherwise  when  a  letter  is  posted,  would 
equally  happen  where  it  is  sent  otherwise  than  by  the  post. 
He  adds  that  the  question  before  the  Lords  in  Dunlop  v. 
Higgins*  was  whether  the  ruling  of  the  Lord  Justice  Clerk  was 
correct,  and  they  held  it  was.  Now  Mr.  Finlay  showed  very 
clearly  that  the  Lord  Justice  Clerk  decided  nothing  inconsistent 
with  the  judgment  in  the  British  and  American  Telegraph  Co.  v. 
Colson.'  Since  the  last  case  there  have  been  two  before  Vice- 
Chancellor  Malins,  in  the  earlier  of  which  he  thought  it  "  reason- 
able," and  followed  it.  In  the  other,  because  the  Lord  Justices 
had  in  Harris's  Case*  thrown  cold  water  on  it,  he  appears  to 
have  thought  it  rot  reasonable.  He  says,  suppose  the  sender 
of  a  letter  says,  "  I  make  you  an  offer,  let  me  have  an  answer 
by  return  of  post."  By  return  the  letter  is  posted,  and  A.  has 
done  all  that  the  person  making  the  offer  requests.  Now  that 
is  precisely  what  he  has  not  done.  He  has  not  let  him  "  have 
an  answer."  He  adds  there  is  no  default  on  his  part.  Why 
should  he  be  the  only  person  to  suffer  ?  Very  true.  But  there 
is  no  default  in  the  other,  and  why  should  he  be  the  only  person 
to  suffer  ?  The  only  other  authority  is  the  expression  of  opinion 
by  Lopes,  J.,  in  the  present  case.  He  says  the  proposer  may 
guard  himself  against  hardship  by  making  the  proposal  ex- 
pressly conditioned  on  the  arrival  of  the  answer  within  a  definite 
time.  But  it  need  not  be  express  nor  within  a  definite  time. 
It  is  enough  that  it  is  to  be  inferred  that  it  is  to  be,  and  if  it  is  to 
be  it  must  be  within  a  reasonable  time.  The  mischievous  con- 
sequences he  points  out  do  not  follow  from  that  which  I  am 
contending  for.  I  am  at  a  loss  to  see  how  the  post-office  is  the 
agent  for  both  parties.  What  is  the  agency  as  to  the  sender  ? 
merely  to  receive  ?  But  suppose  it  is  not  an  answer,  but  an 
original  communication.  What  then  ?  Does  the  extent  of  the 
agency  of  the  post-office  depend  on  the  contents  of  the  letter  ? 
But  if  the  post-office  is  the  agent  of  both  parties,  then  the  agent 
of  both  parties  has  failed  in  his  duty,  and  to  both.  Suppose  the 
offerer  says,  "  My  offer  is  conditional  on  your  answer  reaching 
me."  Whoseagentis  the  post-office  then  ?  But  how  does  an  offerer 
make  the  post-office  his  agent,  because  he  gives  tlie  offeree  an 
option  of  using  that  or  any  other  means  of  communication  ? 

'  Law  Rep.  7  Ch.  596.  '  Law  Rep.  6  Ex.  108. 

»  I  H.  L.  C.  381.  *  Law  Rep.  7  Ch.  596. 


SEC.  ic]  HOUSEHOLD    INS,    CO.    i:    GRANT.  I37 

I  am  of  opinion  that  this  judgment  should  be  reversed.  I  am 
of  opinion  that  there  was  no  bargain  between  tliese  parties  to 
allot  and  take  shares,  that  to  make  such  bargain  there  should 
have  been  an  acceptance  of  the  defendant's  offer  and  a  commu- 
.  nication  to  him  of  that  acceptance.  That  there  was  no  such 
communication.  That  posting  a  letter  does  not  differ  from 
other  attempts  at  communication  in  any  of  its  consequences, 
save  that  it  is  irrevocable  as  between  the  poster  and  post-office. 
The  difficulty  has  arisen  from  a  mistake  as  to  what  was  decided 
in  Dunlop  v.  Higgins,'  and  from  supposing  that  because  there 
is  a  right  to  have  recourse  to  the  post  as  a  means  of  communi- 
cation, that  right  is  attended  with  some  peculiar  consequences, 
and  also  from  supposing  that  because  if  the  letter  reaches  it 
binds  from  the  time  of  posting,  it  also  binds  though  it  never 
reaches.  Mischief  may  arise  if  my  opinion  prevails.  It  prob- 
ably will  not,  as  so  much  has  been  said  on  the  matter  that  prin- 
ciple is  lost  sight  of.  I  believe  equal  if  not  greater,  will,  if  it 
does  not  prevail.  I  believe  the  latter  will  be  obviated  only  by 
the  rule  being  made  nugatory  by  every  prudent  man  saying, 
"  Your  answer  by  post  is  only  to  bind  if  it  reaches  me."  But 
the  question  is  not  to  be  decided  on  these  considerations.  What 
is  the  law  ?  What  is  the  principle  ?  If  Brian,  C.J.,  had  had  to 
decide  this,  a  public  post  being  instituted  in  his  time,  he  would 
have  said  the  law  is  the  same,  now  there  is  a  post,  as  it  was 
before — viz.,  a  communication  to  affect  a  man  must  be  a  com- 
munication— I.e.,  must  reach  him. 
Judgment  affirmed." 

1  I  H.  L.  C.  381. 

2  Vassar  v.  Camp,  11  N.  Y.  441,  accord. 

The  fact  that  there  was  a  valid  contract  has  been  found  by  the  referee. 
The  evidence  showed  that  a  proposal,  in  writing,  was  made  by  Mr.  Daly  to 
the  plaintiff  for  an  engagement  of  her  services  for  the  year  1869.  The 
plaintiff  testifies  that  she  signed  an  acceptance  on  Saturday,  April  13th, 
1870,  and  placed  it  in  the  letter-box  of  the  defendant,  at  the  theatre.  The 
defendant  admits  that  this  letter-box  was  sometimes  used  as  a  place  for 
deposit  of  the  duplicates  of  contracts  made  between  him  and  the  actors.  It 
is  true  that  he  testified  that  he  never  received  the  papers  which  the  plaintiiT 
asserts  that  she  deposited  in  the  box.  This,  however,  is  immaterial.  The 
minds  of  the  parties  met  when  the  plaintiff  complied  with  the  usual,  or  even 
occasional,  practice,  and  left  the  acceptance  in  a  place  of  deposit  recognized 
as  such  by  the  defendant.  This  doctrine  is  analogous  to  that  which  has 
been  adopted  in  the  case  of  communication  by  letter  or  by  telegraph. 
(Vassar  v.  Camp,  11  N.  Y.  441  ;  Trevor  v.  Wood,  36  id.  307.)  The  principle 
governing  these  cases  is,  that  there  is  a  concurrence  of  the  minds  of  the 
parties  upon  a  distinct  proposition,  manifested  by  an  overt  act.  (White  v. 
Corlies,  46  N.  Y.  467.)  The  deposit  in  the  box,  under  the  circumstances  of 
the  present  case,  is  such  an  act. — Dwight,  C,  Howard  7^.  Daly,  61  N.  Y. 
362,  365,  366. — Ed. 


138  TREVOR  &   COLGATE   V.   WOOD   &   CO.  [CHAP.  I. 


JOHN  B.  TREVOR,  Jr.,  and  JAMES  B.   COLGATE,  Appel- 
lants, V.  JOHN  WOOD,  GEORGE  W.  WOOD, 
AND  JAMES    CULLEN,   Respondents. 

In  the  Court  of  Appeals  of  New  York,  March,  1867. 

[Reported  in  36  New  York  Reports  307.] 

Appeal  from  a  judgment  of  the  Supreme  Court  rendered  at 
General  Term,  in  the  first  district,  reversing  a  judgment  entered 
upon  the  report  of  Hon.  William  Mitchell,  referee,  and  order- 
ing a  new  trial  before  the  same  referee. 

The  appellants  have  stipulated  that  if  the  judgment  be 
affirmed,  judgment  absolute  may  be  entered  against  them. 

The  appellants  are  dealers  in  bullion  in  New  York,  and  the 
respondents  are  dealers  in  bullion  in  New  Orleans.  In  1859 
they  agreed  to  deal  with  each  other  in  the  purchase  and  sale  of 
dollars,  and  that  all  communications  between  them  in  reference 
to  such  transactions  should  be  by  telegraph. 

On  January  30th,  i860,  the  appellants  telegraphed  from  New 
York  to  the  respondents,  at  New  Orleans,  asking  at  what  price 
they  would  sell  100,000  Mexican  dollars.  On  the  31st  of  the 
same  month  the  respondents  answered  that  they  would  deliver 
50,000  at  7:^  ;  and  on  the  same  day  the  appellants  telegraphed 
from  New  York  to  the  defendants,  at  New  Orleans,  as  follows  : 

*'  To  John  Wood  &  Co.: 

"  Your  offer,  50,000  Mexicans  at  7^,  accepted  ;  send  more  if 
you  can.  Trevor  &  Colgate." 

At  the  same  time  the  appellants  sent  by  mail  to  the  respond- 
ents a  letter  acknowledging  the  receipt  of  the  respondents'  tele- 
gram, and  copying  the  appellants'  telegraphic  answer.  On  the 
same  day  the  respondents  had  also  sent  by  mail  a  letter  to  the 
appellants,  copying  respondents'  telegram  of  that  date.  On 
the  next  day  (February  ist,  i860)  the  appellants  again  tele- 
graphed to  the  respondents  as  follows  : 

"  To  John  Wood  &  Co.  : 

"  Accepted  by  telegraph  yesterday,  your  offer  for  50,000 
Mexicans  ;  send  as  many  more,  same  price.     Reply. 

"  Trevor  &  Colgate." 

This  telegram,  as  well  as  that  of  January  31st,  from  the  appel- 
lants, did  not  reach  the  respondents  until  10  a.m.  on  Feb- 
ruary 4th,  i860,  in  consequence  of  some  derangement  in  a  part 


SEC.  I^.]  TREVOR   &   COLGATE   V.    WOOD   &   CO.  1 39 

of  the  line  used  by  the  appellants,  but  which  was  not  known  to 
the  appellants  until  February  4th,  when  the  telegraph  com- 
pany reported  the  line  down.  On  February  3d  the  respondents 
telegraphed  to  the  appellants  as  follows  :  "  No  answer  to  our 
.despatch — dollars  are  sold."  And  on  the  same  day  they  wrote 
by  mail  to  the  same  effect.  The  appellants  received  this 
despatch  on  the  same  day,  and  answered  it  on  the  same  day  as 
follows  : 

"  To  John  Wood  &  Co.  : 

"  Your  offer  was  accepted  on  receipt." 

And  again  the  next  day  : 

"  The  dollars  must  come,  or  we  will  hold  you  responsible. 
Reply.  Trevor  &  Colgate." 

And  again  on  February  4th  insisting  on  the  dollars  being  sent 
"  by  this  or  next  steamer,"  and  saying,  "  Don't  fail  to  send  the 
dollars  at  any  price." 

On  the  same  February  4th  the  respondents  telegraphed  to 
appellants  :  "  No  dollars  to  be  had.  We  may  ship  by  steamer 
twelfth,  as  you  propose,  if  we  have  them."  No  dollars  were 
sent,  and  this  action  was  brought  to  recover  damages  for  an 
alleged  breach  of  contract  in  not  delivering  them.  The  referee 
found  for  the  plaintiff  $219.33. 

George  Thompsoji  for  the  appellant. 

W.  Z.  Lariieo  for  the  respondent. 

ScRUGHAM,  J.  The  offer  of  the  respondents  was  made  on 
January  31st,  and  they  did  not  attempt  to  revoke  it  until  Feb- 
ruary 3d.  The  offer  was  accepted  by  the  appellants  before,  but 
the  respondents  did  not  obtain  knowledge  of  the  acceptance 
until  after  this  attempted  revocation.  The  principal  question, 
therefore,  which  arises  in  the  case,  is  whether  a  contract  was 
created  by  this  acceptance  before  knowledge  of  it  reached  the 
respondents. 

The  case  of  Mactier  v.  Frith,  in  the  late  Court  of  Errors 
(6  Wend.  103),  settles  this  precise  question,  and  was  so  regarded 
by  this  Court  in  Vassar  v.  Camp  (i  Kern.  432),  where  it  is  said 
that  the  principle  established  in  the  case  of  Mactier  v.  Frith  was 
that  it  was  only  necessary  "  that  there  should  be  a  concurrence 
of  the  minds  of  the  parties  upon  a  distinct  proposition  mani- 
fested by  an  overt  act  ;  and  that  the  sending  of  a  letter  announc- 
ing a  consent  to  the  proposal  was  a  sufficient  manifestation  and 
consummated  the  contract  from  the  time  it  was  sent." 

There  is  nothing  in  either  the  case  of  Mactier  v.  Frith  nor  in 
that  of  Vassar  v.  Camp,  indicating  that  this  effect  is  given  to 


I40  TREVOR   &    COLGATE   V.    WOOD    &    CO.  [cHAP.  I. 

the  sending  of  a  letter,  because  it  is  sent  by  mail  through  the 
public  post-office,  and  in  fact  the  letter  referred  to  in  the  first 
case  could  not  have  been  so  sent,  for  it  was  to  go  from  the  city 
of  New  York  to  Jacmel,  in  the  island  of  St.  Domingo,  between 
which  places  there  was  at  that  time  no  communication  by  mail. 

The  sending  of  a  letter  accepting  the  proposition  is  regarded 
as  an  acceptance,  because  it  is  an  overt  act  clearly  manifesting 
the  intention  of  the  party  sending  it  to  close  with  the  offer  of 
him  to  whom  it  is  sent,  and  thus  marking  that  aggregatio  men- 
tiiim  which  is  necessary  to  constitute  a  contract.' 

It  was  agreed  between  these  parties  that  their  business  should 
be  transacted  through  the  medium  of  the  telegraph.  The  ob- 
ject of  this  agreement  was  to  substitute  the  telegraph  for  other 
methods  of  communication,  and  to  give  to  their  transactions  by 
it  the  same  force  and  validity  they  would  derive  if  they  had 
been  performed  through  other  agencies.  In  accordance  with 
this  agreement  the  offer  was  made  by  telegraph  to  the  appel- 
lants in  New  York,  and  the  acceptance  addressed  to  the  re- 
spondents in  New  Orleans,  and  immediately  despatched  from 
New  York  by  order  of  the  appellants.  It  cannot,  therefore,  be 
said  that  the  appellants  did  not  put  their  acceptance  in  a  proper 
way  to  be  communicated  to  the  respondents,  for  they  adopted 
the  method  of  communication  which  had  been  used  in  the  trans- 
action by  the  respondents,  and  which  had  been  selected  by  prior 
agreement  between  them  as  that  by  means  of  which  their  busi- 
ness should  be  transacted. 

Under  these  circumstances  the  sending  of  the  despatch  must 
be  regarded  as  an  acceptance  of  the  respondents'  offer,  and 
thereupon  the  contract  became  complete. 

I  cannot  conceive  upon  what  principle  an  agreement  to  com- 
municate by  telegraph  can  be  held  to  be  in  effect  a  warranty  by 
each  party  that  his  communication  to  the  other  shall  be  re- 
ceived. On  the  contrary,  by  agreeing  beforehand  to  adopt 
that  means  of  communication  the  parties  mutually  assume  its 
hazards,  which  are  principally  as  to  the  prompt  receipt  of  the 
despatches. 

The  referee  finds  as  a  fact  that  the  respondents  answered  the 
telegram  of  the  appellants  asking  at  what  price  they  would  sell 
100,000  Mexican  dollars  by  another  telegram  as  follows  : 

*'  Trevor  &  Colgate,  New  York  :  » 

"  Will  deliver  50,000  at  ']\  per  Moses  Taylor.     Answer. 

"John  Wood  &  Co." 
It  was  proved  on  the  trial  that  this  telegram  was  sent  by  the 
'  A  quotation  from  the  opinion  in  Mactier  v.  Frith  has  been  omitted. — En. 


SEC.  Ic.]  IIENTIIORN   r.    FRASER.  I4I 

respondents,  and  a  letter  of  the  same  date,  signed  by  then\, 
repeating  the  telegram  and  stating  that  they  had  sent  it,  was 
read  in  evidence. 

This  affords  sufficient  evidence  of  subscription  by  the  re- 
spondents to  take  the  case  out  of  the  Statute  of  Frauds. 

The  judgment  should  be  reversed. 

All  the  judges  concurring,  except  Bockes  and  Grover,  JJ., 
who  concurred  only  in  the  result. 

Judgment  reversed. 

HENTHORN   v.  FRASER. 

In  the  Court  of  Appeal,  March  3,  26,  1892. 

\_Reporied  in  Law  Reports  2  Chancery  (1892)  27.] 

In  1891  the  plaintiff  was  desirous  of  purchasing  from  the 
Huskisson  Benefit  Building  Society  certain  houses  in  Flamank 
Street,  Birkenhead.  In  May  he,  at  the  office  of  the  society  in 
Chapel  Street,  Liverpool,  signed  a  memorandum  drawn  up  by 
the  secretary,  offering  ;^6oo  for  the  property,  which  offer  was 
declined  by  the  directors  ;  and  on  July  ist  he  made  in  the  same  - 
way  an  offer  of  ^700,  which  was  also  declined.  On  July  7th 
he  again  called  at  the  office,  and  the  secretary  verbally  offered 
to  sell  to  him  for  ;^75o.  This  offer  was  reduced  into  writing, 
and  was  as  follows  : 

"  I  hereby  give  you  the  refusal  of  the  Flamank  Street  prop- 
erty atp^75o  for  fourteen  days." 

The  secretary,  after  signing  this,  handed  it  to  the  plaintiff, 
who  took  it  away  with  him  for  consideration. 

On  the  morning  of  the  8th  another  person  called  at  the  office, 
and  offered  ^760  for  the  property,  which  was  accepted,  and  a 
contract  for  purchase  signed,  subject  to  a  condition  for  avoiding 
it  if  the  society  found  that  they  could  not  withdraw  from  the 
offer  to  the  plaintiff. 

Between  12  and  i  o'clock  on  that  day  the  secretary  posted  to 
the  plaintiff,  who  resided  in  Birkenhead,  the  following  letter  : 

"  Please  take  notice  that  my  letter  to  you  of  the  7th  instant, 
giving  you  the  option  of  purchasing  the  property,  Flamank 
Street,  Birkenhead,  for  £,TS'=>,  in  fourteen  days,  is  withdrawn, 
and  the  offer  cancelled." 

This  letter,  it  appeared,  was  delivered  at  the  plaintiff's  address 
between  5  and  6  in  the  evening,  but,  as  he  was  out,  did  not 
reach  his  hands  till  about  8  o'clock. 


142  HENTHORN   V.    FRASER.  [CHAP.  I. 

On  the  same  July  8th  the  plaintiff's  solicitor,  by  the  plaintiff's 
direction,  wrote  to  the  secretary  as  follows  : 

"  I  am  instructed  by  Mr.  James  Henthorn  to  write  you,  and 
accept  your  offer  to  sell  the  property,  i  to  17  Flamank  Street, 
Birkenhead,  at  the  price  of  ^7S°-  Kindly  have  contract  pre- 
pared and  forwarded  to  me." 

This  letter  was  addressed  to  the  society's  office,  and  was 
posted  in  Birkenhead  at  3.50  p.m.,  was  delivered  at  8.30  p.m. 
after  the  closing  of  the  office,  and  was  received  by  the  secretary 
on  the  following  morning.  The  secretary  replied,  stating  that 
the  society's  offer  had  been  withdrawn. 

The  plaintiff  brought  this  action  in  the  Court  of  the  County 
Palatine  for  specific  performance.  The  Vice-Chancellor  dis- 
missed the  action,  and  the  plaintiff  appealed. 

Farwell,  Q.C.,  and  T.  J^.  Hughes  for  the  appeal, 

Neville,  Q.C.,  and  P.  O.  Lawrence  for  the  defendant. 

We  submit  that  the  Vice-Chancellor  has  drawn  a  correct  in- 
ference— that  there  was  no  authority  to  accept  by  post  ;  and  if 
that  be  so,  the  acceptance  will  not  date  from  the  posting. 
Dunlop  V.  Higgins'  went  on  the  ground  that  it  was  the  under- 
' standing  of  both  parties  that  an  answer  should  be  sent  by  post. 
In  Brogden  v.  Metropolitan  Railway  Company,  Lord  Blackburn 
puts  it  on  the  ground  "  that  where  it  is  expressly  or  impliedly 
stated  in  the  offer  that  you  may  accept  the  offer  by  posting  a 
letter,  the  moment  you  post  the  letter  the  offer  is  accepted." 
It  would  be  very  inconvenient  to  hold  the  post  admissible  in  all 
cases.  Here,  Liverpool  and  Birkenhead  are  at  such  a  short 
distance  from  each  other,  that  it  cannot  be  considered  that  the 
plaintiff  had  an  authority  to  reply  by  post.  If  the  offer  had 
been  sent  by  post,  that  would,  no  doubt,  be  held  to  give  an 
authority  to  reply  by  post  ;  but  the  offer  was  delivered  by  hand 
to  the  plaintiff,  who  was  in  the  habit  of  calling  at  the  defendants' 
office,  and  lived  only  at  a  short  distance,  so  that  authority  to 
reply  by  post  cannot  be  inferred.  The  post  is  not  prohibited  ; 
the  acceptance  may  be  sent  in  any  way  ;  but,  unless  sending  it 
by  post  was  authorized,  it  is  inoperative  till  it  is  received.  Sup- 
pose, immediately  after  posting  the  acceptance,  the  plaintiff  had 
gone  to  the  office  and  retracted  it,  surely  he  would  have  been 
free. 

[Lord  Herschell.  It  is  not  clear  that  he  would,  after  send- 
ing an  acceptance  in  such  a  way  that  he  could  not  prevent  its 
reaching  the  other  party.  Possibly  a  case  where  the  question 
is  as  to  the  date  from  which  an  acceptance  which  has  been  re- 

'  I  H.  L.  C.  381. 


SEC.  ic]  IIEXTIIORX    T'.    fl<ASEK.  I43 

ceived  is  operative  may  not  stand  on  precisely  the  same  footing 
as  one  where  the  question  is  wiiethcr  the  person  making  the 
offer  is  bound,  though  the  acceptance  has  never  been  received 
at  all.  More  evidence  of  authority  to  accept  by  post  may  be 
required  in  the  latter  case  than  in  the  former.] 

Dickinson  ?'.  Dodds'  shows  that  a  binding  contract  to  sell  to 
another  person  may  be  made  while  an  offer  is  pending,  and  that 
it  will  be  a  withdrawal  of  the  offer. 

[Lord  Herschell.  In  that  case  the  person  to  whom  the 
offer  was  made  knew  of  the  sale  before  he  sent  his  acceptance.] 

Fanvell  in  reply. 

Lord  Herschell.  This  is  an  action  for  the  specific  perform- 
ance of  a  contract  to  sell  to  the  plaintiff  certain  house  property 
situate  in  Flamank  Street,  Birkenhead.  The  action  was  tried 
before  the  Vice-Chancellor  of  the  County  Palatine  of  Lanca- 
shire, who  gave  judgment  for  the  defendants.  On  July  7th, 
1891,  the  secretary  of  the  building  society  whom  the  defendants 
represent  handed  to  the  plaintiff,  in  the  office  of  the  society  at 
Liverpool,  a  letter  in  these  terms  :  "  I  hereby  give  you  the  re- 
fusal of  the  Flamank  Street  property  at  ^750  for  fourteen  days." 
It  appears  that  the  plaintiff  had  been  for  some  time  in  negotia- 
tion for  the  property,  and  had  on  two  previous  occasions  made 
offers  for  the  purchase  of  it,  which  were  not  accepted  by  the 
society.  These  offers  were  made  by  means  of  letters,  written 
by  the  secretary  in  the  office  of  the  society,  and  signed  by  the 
plaintiff  there.  The  plaintiff  resided  in  Birkenhead,  and  he 
took  away  with  him  to  that  town  the  letter  of  July  7th  contain- 
ing the  offer  of  the  society.  On  July  8th  a  letter  was  posted  in 
Birkenhead  at  3.50  p.m.,  written  by  his  solicitor  accepting  on 
his  behalf  the  offer  to  sell  the  property  at;j^75o.  This  letter 
was  not  received  at  the  defendants'  office  until  8.30  p.m.,  after 
office  hours,  the  office  being  closed  at  6  o'clock.  On  the  same 
day  a  letter  was  addressed  to  the  plaintiff  by  the  secretary'  of 
the  building  society  in  these  terms  :  "  Please  take  notice  that 
my  letter  to  you  of  the  7th  inst.  giving  you  the  option  of  pur- 
chasing the  property,  Flamank  Street,  Birkenhead,  for  ^750, 
in  fourteen  days,  is  withdrawn  and  the  offer  cancelled."  This 
letter  was  posted  in  Liverpool  between  12  and  i  p.m.,  and  was 
received  in  Birkenhead  at  5.30  p.m.  It  will  thus  be  seen  that  it 
was  received  before  the  plaintiff's  letter  of  acceptance  had 
reached  Liverpool,  but  after  it  had  been  posted.  One  other 
fact  only  need  be  stated.  On  July  8th  the  secretary  of  the 
building  society  sold  the  same  premises  to  Mr.  Miller  for  the 
sum  of  ;^'76o,  but  the  receipt  for  the  deposit  paid  in  respect  of 

1  2  Ch.  D.  463. 


144  HENTHORN   V.    FRASER,  [CHAP.  1. 

the  purchase  stated  that  it  was  subject  to  being  able  to  with- 
draw the  letter  to  Mr.  Henthorn  giving  him  fourteen  days' 
option  of  purchase. 

If  the  acceptance  by  the  plaintiff  of  the  defendants'  offer  is  to 
be  treated  as  complete  at  the  time  the  letter  containing  it  was 
posted,  I  can  entertain  no  doubt  that  the  society's  attempted 
revocation  of  the  offer  was  wholly  ineffectual.  I  think  that  a 
person  who  has  made  an  offer  must  be  considered  as  continu- 
ously making  it  until  he  has  brought  to  the  knowledge  of  the 
person  to  whom  it  was  made  that  it  is  withdrawn.  This  seems 
to  me  to  be  in  accordance  with  the  reasoning  of  the  Court  of 
King's  Bench  in  the  case  of  Adams  v.  Lindsell/  which  was 
approved  by  the  Lord  Chancellor  in  Dunlop  v.  Higgins,^  and 
also  with  the  opinion  of  Lord  Justice  Mellish  in  Harris's  Case.' 
The  very  point  was  decided  in  the  case  of  Byrne  v.  Van  Tien- 
hoven*  by  Lord  Justice  Lindley,  and  his  decision  was  subse- 
quently followed  by  Mr.  Justice  Lush.  The  grounds  upon 
which  it  has  been  held  that  the  acceptance  of  an  offer  is  com- 
plete when  it  is  posted  have,  I  think,  no  application  to  the 
revocation  or  modification  of  an  offer.  These  can  be  no  more 
effectual  than  the  offer  itself,  unless  brought  to  the  mind  of  the 
person  to  whom  the  offer  is  made.  But  it  is  contended  on 
behalf  of  the  defendants  that  the  acceptance  was  complete  only 
when  received  by  them  and  not  on  the  letter  being  posted. 
It  cannot,  of  course,  be  denied,  after  the  decision  in  Dunlop  v. 
Higgins^  in  the  House  of  Lords,  that,  where  an  offer  has  been 
made  through  the  medium  of  the  post,  the  contract  is  complete 
as  soon  as  the  acceptance  of  the  offer  is  posted,  but  that  decision 
is  said  to  be  inapplicable  here,  inasmuch  as  the  letter  containing 
the  offer  was  not  sent  by  post  to  Birkenhead,  but  handed  to  the 
plaintiff  in  the  defendants'  office  at  Liverpool.  The  question 
therefore  arises  in  what  circumstances  the  acceptance  of  an  offer 
is  to  be  regarded  as  complete  as  soon  as  it  is  posted.  In  the  case 
of  the  Household  Fire  and  Carriage  Accident  Insurance  Com- 
pany z;.  Grant,'  Lord  Justice  Baggallay  said  :'  "  I  think  that  the 
principle  established  in  Dunlop  v.  Higgins  is  limited  in  its  ap- 
plication to  cases  in  which  by  reason  of  general  usage,  or  of  the 
relations  between  the  parties  to  any  particular  transactions,  or 
of  the  terms  in  which  the  offer  is  made,  the  acceptance  of  such 
offer  by  a  letter  through  the  post  is  expressly  or  impliedly 
authorized."  And  in  the  same  case  Lord  Justice  Thesiger 
based  his  judgment^  on  the  defendant  having  made  an  applica- 

'  I  B.  &  Al.  68i.  "  5  C.  P.  D.  344.  '  Idul,  227. 

»  I  H.  L.  C.  381,  399.  i"  I  H.  L.  C.  381.  84EX.  D.  218. 

«  Law  Rep.  7  Ch.  587.  «  4  Ex.  D.  216. 


SEC.  ic]  HENTIIORN   7'.    FRASER.  I45 

tion  for  shares  under  circumstances  "  from  which  it  must  be 
implied  that  he  authorized  the  company,  in  the'event  of  their 
allotting  to  him  the  shares  applied  for,  to  send  the  notice  of 
allotment  by  post."  The  facts  of  that  case  were  that  the  de- 
fendant had,  in  Swansea,  where  he  resided,  handed  a  letter  of 
application  to  an  agent  of  the  company,  their  place  of  business 
being  situate  in  London.  It  was  from  these  circumstances  that 
the  Lords  Justices  implied  an  authority  to  the  company  to 
accept  the  defendant's  offer  to  take  shares  through  the  medium 
of  the  post.  Applying  the  law  thus  laid  down  by  the  Court  of 
Appeal,  I  think  in  the  present  case  an  authority  to  accept  by 
post  must  be  implied.  Although  the  plaintiff  received  the  offer 
at  the  defendants'  office  in  Liverpool,  he  resided  in  another 
town,  and  it  must  have  been  in  contemplation  that  he  would 
take  the  offer,  which  by  its  terms  was  to  remain  open  for  some 
days,  with  him  to  his  place  of  residence,  and  those  who  made 
the  offer  must  have  known  that  it  would  be  according  to  the 
ordinary  usages  of  mankind  that  if  he  accepted  it  he  should 
communicate  his  acceptance  by  means  of  the  post.  I  am  not 
sure  that  I  should  myself  have  regarded  the  doctrine  that  an 
acceptance  is  complete  as  soon  as  the  letter  containing  it  is 
posted  as  resting  upon  an  implied  authority  by  the  person  mak- 
ing the  offer  to  the  person  receiving  it  to  accept  by  those  means. 
It  strikes  me  as  somewhat  artificial  to  speak  of  the  person  to 
whom  the  offer  is  made  as  having  the  implied  authority  of  the 
other  party  to  send  his  acceptance  by  post.  He  needs  no 
authority  to  transmit  the  acceptance  through  any  particular 
channel  ;  he  may  select  what  means  he  pleases,  the  post-office 
no  less  than  any  other.  The  only  effect  of  the  supposed  author- 
ity is  to  make  the  acceptance  complete  so  soon  as  it  is  posted, 
and  authority  will  obviously  be  implied  only  when  the  tribunal 
considers  that  it  is  a  case  in  which  this  result  ought  to  be 
reached.  I  should  prefer  to  state  the  rule  thus  :  Where  the 
circumstances  are  such  that  it  must  have  been  within  the  con- 
templation of  the  parties  that,  according  to  the  ordinary  usages 
of  mankind,  the  post  might  be  used  as  a  means  of  communi- 
cating the  acceptance  of  an  offer,  the  acceptance  is  complete  as 
soon  as  it  is  posted.  It  matters  not  in  which  way  the  proposi- 
tion be  stated,  the  present  case  is  in  either  view  within  it.  The 
learned  Vice-Chancellor  appears  to  have  based  his  decision  to 
some  extent  on  the  fact  that  before  the  acceptance  was  posted 
the  defendants  had  sold  the  property  to  another  person.  The 
case  of  Dickinson  v.  Dodds'  was  relied  upon  in  support  of  that 
defence.     In  that  case,  however,  the  plaintiff  knew  of  the  subse- 

1  2  Ch.  D.  463. 


146  HENTHORN   V.    FRASER.  [CHAP.  I. 

quent  sale  before  he  accepted  the  offer,  which,  in  my  judgment, 
distinguishes  it  entirely  from  the  present  case.  For  the  reasons 
I  have  given,  I  think  the  judgment  must  be  reversed  and  the 
usual  decree  for  specific  performance  made.  The  respondents 
must  pay  the  costs  of  the  appeal  and  of  the  action. 

LiNDLEY,  L.J.  I  quite  concur.  1  am  not  prepared  to  accede 
to  the  argument  that  because  the  offer  was  not  made  by  post 
there  was  no  authority  to  send  an  acceptance  by  post,  and  the 
Vice-Chancellor,  in  m*y  opinion,  fell  into  a  mistake  by  acced- 
ing to  it. 

Kay,  L.J.  On  July  7th,  1891,  the  defendants  gave  to  the 
plaintiff,  who  was  then  in  their  office  in  Liverpool,  an  offer  in 
writing  to  sell  him  certain  real  property  at  Birkenhead,  where 
the  plaintiff  resided.  The  plaintiff  had  been  on  several  previous 
occasions  at  their  office  on  this  or  like  business.  He  was  not 
able  to  write  beyond  signing  his  name.  On  July  8th  his  solici- 
tor wrote  by  his  direction  accepting  the  offer.  This  letter  was 
posted  at  3.50  p.m.,  and  arrived  at  8.30  the  same  evening.  This 
was  after  office  hours,  and  it  was  not  opened  till  10  o'clock  next 
morning.  In  the  mean  time  the  defendants  wrote  withdrawing 
their  offer  on  the  same  July  8th,  and  posted  their  letter  between 
12  and  I  P.M.  This  was  received  at  5.30  the  same  evening.  On 
the  same  July  8th  the  defendants  entered  into  a  contract  to  sell 
the  same  property  to  another  person  with  an  express  condition 
if  they  were  able  to  withdraw  their  offer  to  the  plaintiff. 

The  question  is,  was  the  withdrawal  in  time  or  too  late. 

Dunlop  V.  Higgins'  has  decided  that,  wnere  a  letter  sent  by 
post  was  a  proper  mode  of  acceptance,  the  contract  was  com- 
plete from  the  time  that  the  letter  was  posted.  In  that  case  the 
letter  was  actually  received,  though,  by  fault  of  the  post-office, 
there  was  some  delay  in  its  transmission.  Upon  receipt  of  it, 
the  offer  was  withdrawn.  The  question  was  the  same  as  in  the 
present  case,  except  that  the  withdrawal  was  after  the  actual 
receipt  of  the  acceptance  which  was  treated  as  being  too  late. 
It  was  held  that,  by  posting  the  letter  in  due  time,  the  party  by 
the  usage  of  trade  had  done  all  that  he  was  bound  to  do.  He 
could  not  be  responsible  for  the  delay  of  the  post-office  in  de- 
livering the  letter,  and  therefore  there  was  from  the  time  of  the 
posting  a  valid  acceptance.  It  might  have  still  been  doubtful 
whether  posting  a  letter  of  acceptance  in  time  would  amount  to 
an  acceptance  if  the  letter  was  never  received.  The  ordinary 
rule  is,  that  to  constitute  a  contract  there  must  be  an  offer,  an 
acceptance,  and  a  communication  of  that  acceptance  to  the 
person  making  the  offer  :  per  Lord   Blackburn   in   Brogden  v. 

1  I  H.  L.  C.  381. 


SEC.  ic]  HENTHORN   V.    FRASER.  I47 

Metropolitan  Railway  Company  ;'  and  see  per  Lord  Bramwell.' 
It  may  be  that  where  the  communication  is  in  fact  received, 
the  contract  may  date  back  to  the  time  of  posting  the  accept- 
ance, but  there  is  considerable  reason  for  holding  that  if  never 
.received  the  posting  might  be  treated  as  a  nullity.  The  point 
was  so  decided  in  British  and  American  Telegraph  Company  ?'. 
Colson  ;'  and  see  the  judgment  of  Lord  Bramwell  in  Household 
Fire  and  Carriage  Accident  Insurance  Company  v.  Grant.  How- 
ever, in  the  last-mentioned  case,  which  is  a  decision  binding 
upon  this  Court,  the  Court  of  Appeal,  Bramwell,  L.J.,  dissent- 
ing, held,  that  the  posting  of  a  letter  of  allotment  in  answer  to 
an  application  for  shares  constituted  a  binding  contract  to  take 
the  shares  though  the  letter  of  allotment  was  not  received.  In 
his  judgment,  Thesiger,  L.J.,  refers  to  the  cases  in  which  the 

'  2  App.  Cas.  692. 

But  when  you  come  to  the  general  proposition  which  Mr.  Justice  Brett 
seems  to  have  laid  down,  that  a  simple  acceptance  in  your  own  mind,  with- 
out any  intimation  to  the  other  party,  and  expressed  by  a  mere  private  act, 
such  as  putting  a  letter  into  a  drawer,  completes  a  contract,  I  must  say  I 
differ  from  that.  It  appears  from  the  Year  Books  that  as  long  ago  as  the 
time  of  Edward  IV.,*  Chief  Justice  Brian  decided  this  very  point.  The  plea 
of  the  defendant  in  that  case  justified  the  seizing  of  some  growing  crops 
because  he  said  the  plaintiff  had  offered  him  to  go  and  look  at  them,  and  if 
he  liked  them,  and  would  give  2S.  6d.  for  them,  he  might  take  them  ;  that 
was  the  justification.  That  case  is  referred  to  in  a  book  which  I  published 
a  good  many  years  ago,  Blackburn  on  Contracts  of  Sale,f  and  is  there  trans- 
lated. Brian  gives  a  very  elaborate  judgment,  explaining  the  law  of  the 
unpaid  vendor's  lien,  as  early  as  that  time,  exactly  as  the  law  now  stands, 
and  he  consequently  says:  "This  plea  is  clearly  bad,  as  you  have  not 
shown  the  payment  or  the  tender  of  the  money  ;"  but  he  goes  farther,  and 
says  (I  am  quoting  from  memory,  but  I  think  I  am  quoting  correctl)^), 
"  moreover,  your  plea  is  utterly  naught,  for  it  does  not  show  that  when  you 
had  made  up  your  mind  to  take  them  you  signified  it  to  the  plaintiff,  and 
your  having  it  in  your  own  mind  is  nothing,  for  it  is  trite  law  that  the 
thought  of  man  is  not  triable,  for  even  the  devil  does  not  know  what  the 
thought  of  man  is  ;  but  I  grant  you  this,  that  if  in  his  offer  to  you  he  had 
said.  Go  and  look  at  them,  and  if  you  are  pleased  with  them  signify  it  to 
such  and  such  a  man,  and  if  you  had  signified  it  to  such  and  such  a  man, 
your  plea  would  have  been  good,  because  that  was  a  matter  of  fact."  I 
take  it,  my  Lords,  that  that,  which  was  said  three  hundred  years  ago  and 
more,  is  the  law  to  this  day,  and  it  is  quite  what  Lord  Justice  Mellish  in 
ex  parte  Harris^:  accurately  says,  that  where  it  is  expressly  or  impliedly 
stated  in  the  offer  that  you  may  accept  the  offer  by  posting  a  letter,  the 
moment  you  post  the  letter  the  offer  is  accepted.  You  are  bound  from  the 
moment  you  post  the  letter,  not.  as  it  is  put  here,  from  the  moment  you 
make  up  your  mind  on  the  subject.— Per  Lord  Blackburn  in  Brogden  v. 
Metropolitan  Railway  Company,  L.  R.  2  App.  Cas.  666,  692  —Ed. 

»  4  Ex.  D.  233.  ^  Law  Rep.  6  Ex.  108. 

*  17  Edw.  IV.,  T.  Pasch  Case,  2.  t  Page  190  et  seq. 

X  Law  Rep.  7  Ch.  Ap    593 


148  HENTHORN   V.    FRASER.  [CHAP.  I. 

decision  in  Dunlop  v.  Higgins'  has  been  explained  by  saying 
that  the  post-office  was  treated  as  the  common  agent  of  both 
contracting  parties.  That  reason  is  not  satisfactory.  The 
post-office  are  only  carriers  between  them.  They  are  agents  to 
convey  the  communication,  not  to  receive  it.  The  communica- 
tion is  not  made  to  the  post-office,  but  by  their  agency  as  car- 
riers. The  difference  is  between  saying  "  Tell  my  agent  A.,  if 
you  accept,"  and  "  Send  your  answer  to  me  by  A."  In  the 
former  case  A.  is  to  be  the  intelligent  recipient  of  the  accept- 
ance, in  the  latter  he  is  only  to  convey  the  communication  to 
the  person  making  the  offer  which  he  may  do  by  a  letter,  know- 
ing nothing  of  its  contents.  The  post-office  are  only  agents  in 
the  latter  sense.  All  that  Dunlop  v.  Higgins'  decided  was,  that 
the  acceptor  of  the  offer  having  properly  posted  his  acceptance, 
was  not  responsible  for  the  delay  of  the  post-office  in  delivering 
it  ;  so  that  after  receipt  the  said  party  could  not  rescind  on  the 
ground  of  that  delay.  I  cannot  help  thinking  that  the  decision 
has  been  treated  as  going  much  further  than  the  House  of  Lords 
intended.  Baggallay,  L.J.,  in  his  judgment  in  Household 
Fire  and  Carriage  Accident  Insurance  Company  v.  Grant, ^  treats 
it  as  applicable  "  to  cases  in  which  by  reason  of  general  usage, 
or  of  the  relations  between  the  parties  to  any  particular  trans- 
actions, or  of  the  terms  in  which  the  offer  is  made,  the  accept- 
ance of  such  offer  by  a  letter  through  the  post  is  expressly  or 
impliedly  authorized."  If  for  authorized  the  word  "contem- 
plated" is  substituted,  I  should  be  disposed  to  agree  with  this 
dictum.  But  I  would  rather  express  it  thus  :  "  Posting  an 
acceptance  of  an  offer  may  be  sufficient  where  it  can  fairly  be 
inferred  from  the  circumstances  of  the  case  that  the  acceptance 
might  be  sent  by  post." 

Is  that  a  proper  inference  in  the  present  case  ?  I  think  it  is. 
One  party  resided  in  Liverpool,  the  other  in  Birkenhead.  The 
acceptance  would  be  expected  to  be  in  writing,  the  subject  of 
purchase  being  real  estate.  These  and  the  other  circumstances 
to  which  I  have  alluded,  in  my  opinion,  warrant  the  inference 
that  both  parties  contemplated  that  a  letter  sent  by  post  was  a 
mode  by  which  the  acceptance  might  be  communicated.  I 
think,  therefore,  that  we  are  bound  by  authority  to  hold  that 
the  contract  was  complete  at  3.50  p.m.  on  July  8th,  when  the 
letter  of  acceptance  was  posted,  and  before  the  letter  of  with- 
drawal was  received. 

Then  what .  was  the  effect  of  the  withdrawal  by  the  letter 
posted  between  12  and  i  the  same  day,  and  received  in  the  even- 
ing ?  Did  that  take  effect  from  the  time  of  posting  ?  It  has 
1  I  H.  L.  C.  381.  s  Jdtd.  »  4  Ex.  D.  227. 


SEC.  ic]  S V.   F ,    D ,  AND    OTHERS.  I49 

never  been  held  that  this  doctrine  applies  to  a  letter  withdraw- 
ing the  offer.  Take  the  cases  alluded  to  by  Lord  Bramwell  in 
the  Household  Fire  and  Carriage  Accident  Insurance  Company  v. 
Grant.'  A  notice  by  a  tenant  to  quit  can  have  no  operation  till 
•it  comes  to  the  actual  knowledge  of  the  person  to  whom  it  is 
addressed.  An  offer  to  sell  is  nothing  until  it  is  actually  re- 
ceived. No  doubt  there  is  the  seeming  anomaly  pointed  out  by 
Lord  Bramwell  that  the  same  letter  might  contain  an  accept- 
ance, and  also  such  a  notice  or  offer  as  to  other  property,  and 
that  when  posted  it  would  be  effectual  as  to  the  acceptance,  and 
not  as  to  the  notice  or  offer.  But  the  anomaly,  if  it  be  one, 
arises  from  the  different  nature  of  the  two  communications.  As 
to  the  acceptance,  if  it  was  contemplated  that  it  might  be  sent 
by  post,  the  acceptor,  in  Lord  Cottenham's  language,  has  done 
all  that  he  was  bound  to  do  by  posting  the  letter,  but  this  can- 
not be  said  as  to  the  notice  of  withdrawal.  That  was  not  a  con- 
templated proceeding.  The  person  withdrawing  was  bound  to 
bring  his  change  of  purpose  to  the  knowledge  of  the  said  party, 
and  as  this  was  not  done  in  this  case  till  after  the  letter  of 
acceptance  was  posted,  I  am  of  opinion  that  it  was  too  late. 

The  point  has  been  so  decided  in  two  cases  :  Byrne  v.  Van 
Tienhoven,°  and  Stevenson  v.  McLean,^  and  I  agree  with  those 
decisions. 

Solicitors  :  G.  Dalby,  Birkenhead  ;  Miller  cr*  Williamson^ 
Liverpool.  

S V.   F ,   D ,   AND  Others. 


Court  of  Cassation  in  France,  September  i,  1813. 

[Reported  in  Merlin,  Repertoire  de  Jurisprude7ice,  Tit.   Vente,  i.  Art. 
III.,  No.  XI.  bis.Y 

In  the  beginning  of  January,  1813,  D.,  who  was  intending  to 
purchase  an  English  license,  was  at  Paris  with  S.  of  Havre,  who 
had  recently  purchased  the  ship  Elisa  of  one  M.  Filleau. 

S.  proposed  to  transfer  his  bargain  to  D.  for  his  firm,  F.,  D.  & 
Company. 

To  induce  D.  to  treat  with  him,  S.  declared  that  he  would 
assume,  among  other  obligations,  that  of  furnishing  this  vessel 
with  fifteen  men,  comprising  therein  two  captains  and  one 
master  of  perfectly  good  repute,  and  that  the  vessel  should  be 
ready  to  put  to  sea  February  5th,  1813. 

The  bargain  was  not  concluded  ;   S.   returned  to  Havre  :    it 

1  4  Ex.  D.  234.  »  5  C.  P.  D.  344.  '  5  Q-  B.  D.  346. 

•*  This  case  is  reprinted  by  permission  from  Langdell's  Cases  on  Con- 
tracts.— Ed. 


150  S V.  F ,   D ,  AND    OTHERS.  [CHAP.  I. 

was  agreed  that  D.  should  write  to  him,  if  he  concluded  to 
make  the  purchase  in  question. 

January  21st,  1813,  the  Messrs.  D.  wrote  to  S.  as  follows  : 
"  You  have  guaranteed  to  us  to  furnish  this  ship  with  fifteen 
men,  comprising  therein  two  captains  and  one  master  of  per- 
fectly good  repute,  and  that  the  ship  shall  be  ready  to  put  to 
sea  February  5th  next.  .  .  .  With  these  several  assurances  and 
guaranties,  without  which  we  should  not  treat,  since  this  affair 
is  based  entirely  on  our  confidence  in  your  aforesaid  assurances 
and  guaranties  .  .  .  we  consent  to  assume  in  your  place  and 
stead,  the  payment  to  M.  Filleau  of  the  price  of  55,000 
francs,'"  etc. 

S.  answered  this  letter  by  two  others  of  the  23d,  the  one  writ- 
ten, as  he  said,  in  the  morning,  and  the  other  in  the  evening  ; 
but  they  both  arrived  at  Paris  on  the  25th,  at  the  same  mo- 
ment. 

In  the  first  of  these  letters  he  said  :  "  The  ship  was  still  in 
my  hands  when  your  letter  reached  me  ;  it  is  therefore  yours 
upon  the  conditions  agreed  upon  between  tis.  You  can  act  accord- 
ingly. I  have  only  time  to  address  you  this  word,  so  that  you 
may  receive  it  to-morrow  evening.  A  longer  letter,  which  I  am 
going  to  write  to  you  this  evening,  will  reach  you  Monday 
morning  by  the  diligence." 

In  the  second  letter,  after  announcing  that  the  definitive  act 
of  sale  would  be  passed  on  the  morrow,  he  added  :  "  The  most 
difficult  thing  is  the  crew,  with  which  I  have  occupied  myself 
since  the  receipt  of  your  letter.  ...  It  is  very  true  that  I  said 
to  you  that  I  could  have  the  ship  ready  to  sail  February  5th  ; 
she  will  be  much  sooner  ;  but  as  to  the  crew,  if  you  had  come 
to  a  decision  in  time,  I  would  have  written  from  Paris  to  obtain 
one  ;  and  now  it  is  going  to  be  necessary  to  send  an  agent  to 
look  for  one,  and  it  is  scarcely  possible  that  this  crew  can  be  at 
hand  at  so  early  a  date  :  I  shall  leave  nothing  undone,  however, 
to  accomplish  it." 

To  this  letter  .  .  .  the  Messrs.  D.  replied,  by  letter  of  Jan- 
uary 25th,  that  they  could  not  accept  the  purchase,  since  S.  did 
not  assure  them  of  the  provision  of  a  crew  of  good  character, 
and  of  two  honest  and  intelligent  captains,  as  he  had  offered 
and  guaranteed  to  them,  so  as  to  put  to  sea  February  5th,  con- 
ditions specified  in  their  letter  of  the  21st,  and  upon  which  they 
had  made  the  purchase  of  the  ship  Elisa  to  depend. 

The  same  day,  the  25th,  S.  confirmed  his  letters  of  the  23d, 

'  Messrs.  D.  added  :  "  We  shall  expect  your  answer  by  return  of  post.  .  .  . 
Please  to  deliver  your  answer  to  the  conductor  of  the  mail,  promising  him 
two  or  three  francs." 


SEC.  ic]  S V.  F ,   D ,  AND   OTHERS.  151 

announcing  that  the  act  had  been  signed  on  the  25th,  that  he 
had  received  55,000  francs  in  drafts,  the  price  of  the  ship,  etc. 

S.  added  that  he  had  sent  a  man  to  Ostend,  Dunkirk,  and 
Antwerp,  for  the  crew  ;  that  it  was  necessary  to  be  on  the  alert  ; 
and  that  he  intended  that  everything  should  be  ready  Feb- 
ruary 5  th,  if  it  was  possible. 

The  Messrs.  D.  replied  to  this  letter  the  28th,  confirming  the 
positive  refusal  expressed  in  that  of  the  25th.  They  said  they 
had  only  consented  to  the  purchase  upon  the  several  conditions 
specified  in  their  letter  of  the  21st  ;  and  that  all  the  guaranties 
demanded  not  having  been  accorded,  they  were  not  bound. 

Upon  the  presentation  of  the  bills  drawn  by  S.  to  the  order 
of  M.  Filleau,  who  had  sold  the  Elisa,  the  Messrs.  D.  &  Co. 
refused  to  accept  them. 

Thereupon  Filleau  had  recourse  to  S.  as  the  drawer  of  the 
bills,  and  S.  commenced  proceedings  before  the  Tribunal  of 
Commerce  of  Havre  against  F.,  D.  &  Co.,  to  enforce  his  alleged 
contract  with  them  ;  and  judgment  was  there  rendered  in  the 
plaintiff  s  favor. 

The  defendants  thereupon  appealed  to  the  Court  of  Appeal 
of  Rouen,  where  the  judgment  was  reversed  ;  and  from  the 
decree  of  reversal  the  original  plaintiff  appealed  to  the  Court  of 
Cassation.* 

In  the  latter  Court  Merlin  argued  as  follows  in  support  of  the 
decree  appealed  from  : 

What  law  has  the  Court  of  Appeal  of  Rouen  violated,  in  de- 
claring that  the  two  letters,  for  the  reason  alone  that  they 
reached  the  Messrs.  D.  at  the  same  time,  formed  as  to  them 
only  one  indivisible  whole  ? 

It  has,  they  say,  violated  law  65,  D.  de  acquiretido  return 
dominio,  and  law  14,  §  17,  D.  de  furtis,  which  decide  that  a  letter 
addressed  to  a  person  ceases  to  belong  to  him  who  wrote  it, 
from  the  moment  when  he  delivers  it  to  the  individual  whom 
the  person  addressed  has  charged  with  receiving  it  and  bringing 
it  to  him.  Whence  it  follows  that  the  first  letter  of  January  23d 
became  the  property  of  the  Messrs.  D.  at  the  very  instant  that 
the  demandant  delivered  it  to  the  conductor  of  the  mail,  con- 
formably to  the  direction  which  the  Messrs.  D.  had  given  him 
on  that  subject  ;  that  from  that  instant  the  contract  was  formed 
between  the  Messrs.  D.  and  the  demandant  ;  and  that  the 
demandant  could  neither  break  it  nor  modify  it  by  the  second 
letter  of  the  same  day.   .  .   . 

Assuming   that   the   first   letter  became  the   property   of  the 

'  All  details  as  to  the  proceedings  in  the  lower  courts,  and  also  portions 
of  the  arofument  of  Merlin,  have  been  omitted.— ^d. 


152  S V.   F ,   D ,  AND   OTHERS.         [CHAP.  I. 

Messrs.  D.  at  the  very  instant  when  the  demandant  delivered  it 
to  the  person  indicated  to  him  for  that  purpose,  would  it  follow 
that  the  Messrs.  D.,  receiving  the  second  letter  at  the  same 
moment  as  the  first,  could  not  consider  it  as  modifying  the  con- 
sent, pure  and  simple,  given  to  their  propositions  by  the  first, 
as  putting  upon  that  consent  a  restriction  which  left  them  at 
liberty  to  reconsider  their  propositions  ? 

In  order  to  decide  this  question,  let  us  examine  another  con- 
nected with  it  :  Could  the  demandant,  having  written  and 
sent  his  first  letter,  revoke  its  contents  before  it  reached  the 
Messrs.  D.;  and  if,  having  done  so,  his  revocation  had  been 
notified  to  the  Messrs.  D.  before  they  received  the  first  letter, 
could  the  Messrs.  D.,  on  receiving  afterward  his  first  letter, 
adhere  to  it  in  spite  of  him,  and  force  him  to  execute  the  bar- 
gain to  which  by  his  first  letter  he  had  given  his  assent  ? 

The  demandant  maintains  that  he  could  not  revoke  it  ;  but 
he  maintains  it  only  because  the  interests  of  his  cau,se  oblige 
him  to  do  it  ;  and  good  sense  and  the  most  weighty  authorities 
rise  up  against  his  assertion.  What  is  a  letter  missive  by  which 
I  announce  to  you  that  I  accept  the  bargain  which  you  have 
proposed  to  me  ?  Nothing  else  than  a  dumb  agent,  which  I 
send  to  declare  to  you  my  acceptance  ;  and  it  is  thus  that  Cujas 
considered  it  in  his  notes  upon  the  title  of  the  Code,  si  quis 
alteri  vel  sibi  emerit,  when  he  says  :  Epistola  non  contrahit,  sed 
nunciat  dominum  contrahere. 

Now  it  is  an  elementary  maxim  that  I  can  recall  my  agent,  so 
long  as  he  has  not  executed  his  mandate. 

I  can  therefore  recall  the  letter  which  I  have  addressed  to  you, 
so  long  as  it  has  not  reached  you,  so  long  as  it  has  not  brought 
to  you  the  words  which  I  had  given  it  in  charge  for  you. 

Grant  that  you  are  the  owner  of  the  material  of  my  letter 
from  the  moment  when  I  committed  it  either  to  your  carrier  or 
to  a  public  messenger,  who  is  the  carrier  of  everybody,  at  the 
proper  hour.  That  does  not  deprive  my  letter  of  the  character 
of  a  dumb  agent  ;  it  does  not  consequently  prevent  me  from 
recalling  it  before  you  have  received  it. 

Suppose  we  look  at  the  letter  missive  under  another  aspect  ; 
suppose  we  say,  with  the  demandant,  that  it  is  a  series  of  words 
fixed  upon  paper  ;  we  shall  still  arrive  at  the  same  result. 

Indeed,  in  what  sense  is  it  true,  as  the  demandant  says,  that 
the  words  fixed  upon  the  paper  in  the  morning  are  as  distinct 
from  those  which  were  affixed  to  it  in  the  evening,  as  the  words 
pronounced  at  mid-day  are  distinct  from  those  which  are  pro- 
nounced six  hours  after  ? 

It  is  true  in  this  sense,  that,  if  the  words  fixea  upon  the  paper 


SEC.  ic]  S V.  F ,    D-^ ,  AND    OTHERS.  I  53 

in  the  morning  reach  the  person  to  whom  they  are  addressed 
before  those  which  were  affixed  to  it  in  the  evenin*^,  those  of 
the  evening  cannot  destroy  those  of  the  morning. 

But  it  is  false  in  this  sense,  that  the  words  fixed  upon  the 
JDaper  in  the  morning  preserve  their  priority  over  those  of  tlie 
evening,  if  those  of  the  evening  reach  the  person  to  whom  they 
are  addressed  either  before  those  of  the  morning  or  at  the  same 
time. 

Bartolus,  whom  all  the  authors  have  copied  in  this  regard, 
establishes,  upon  law  4,  D.  de  donationibus,  a  principle  which 
puts  this  in  the  clearest  light.  A  letter,  says  he,  is  for  the  ab- 
sent to  whom  it  is  written  what  words  are  addressed  to  a  person 
present  ;  and  he  who  sends  a  letter  to  another  is  considered  as 
speaking  to  him  as  if  he  was  present  :  Epistola  absenti  idem  est 
quod  seniio  prcesentibus  j  ct  qui  mittit  alteri  litter  as,  intelligitur  prcescns 
prcBsenti  loqui. 

Now  it  is  certain  that  words  addressed  to  a  person  present 
can  only  bind  him  who  uttered  them,  so  far  as  the  person  to 
whom  they  were  addressed  heard  them  before  they  were  re- 
tracted. 

It  is  therefore  the  same  of  a  letter  written  to  an  absent  per- 
son. This  letter,  therefore,  can  only  oblige  its  author,  so  far 
as  the  absent  person  to  whom  it  is  written  receives  it  and  reads 
it,  things  being  still  entire. 

This  is  the  necessary  consequence  of  the  very  definition  which 
the  demandant  gives  of  a  letter  missive.  A  letter  missive  is 
only  a  series  of  words  fixed  upon  paper  ;  but  these  words  are 
addressed  to  an  absent  person  ;  it  is  necessary,  therefore,  in 
order  that  they  should  have  their  effect,  that  the  absent  person 
to  whom  they  are  addressed  should  understand  them  ;  they  are, 
therefore,  without  effect  so  far  as  he  to  whom  they  are  addressed 
has  not  understood  them  ;  as  they  would  be  without  effect  if, 
being  addressed  to  a  person  present,  that  person  was,  from  a 
physical  cause,  not  in  a  condition  to  understand  them.  Now 
how  can  an  absent  person  understand  the  words  that  are  ad- 
dressed to  him  ?  Certainly  he  can  only  understand  them  by 
reading  the  letter  which  contains  them.  The  letter  b}'^  which  I 
contract  an  obligation  can  therefore  only  fulfil  its  object  so  far 
as  I  can  be  supposed  to  persist,  at  the  moment  when  it  arrives, 
in  the  will  which  I  had  in  writing  it.  If,  therefore,  at  the 
moment  when  my  letter  arrives,  I  have  already  in  another  way 
manifested  and  notified  a  contrary  will,  my  letter  can  no  longer 
bind  me  ;  it  is  paralyzed  in  advance. 

That  is  so  true  that  if,  at  the  moment  when  my  letter  arrives, 
I  am  no  longer  able  to  speak  to  the  person  to  whom  it  is  ad- 


154  S V.  F ,    D ,  AND    OTHERS.  [CHAP.  I. 

dressed,  or  to  persist  in  the  will  which  I  had  in  writing  it,  that 
will  cannot  be  opposed  to  me,  it  cannot  produce  any  effect 
against  me  ;  and  it  is  upon  this  foundation  that  all  the  doctors 
teach  that  if,  after  having  written  to  a  person  with  whom  I  was 
in  treaty  for  a  bargain,  that  I  accepted  his  proposition,  I  happen 
to  die  before  my  letter  reaches  that  person,  there  is  no  contract 
between  him  and  me. 

''  Epistola,'"  says  Surdus,  lib.  i.  Consilium  136,  in  accordance 
with  a  host  of  authors  whom  he  cites,  "  obligare  non potest  scriben- 
tetn,  si  is  decedat  antequa7n  ad  eum  pervenerit  ciiffi  quo  erat  contrahen- 
dum,  quia  chm  per  mortem  deficiat  scribentis  consensus,  non  potest  diet 
quod  ejus  scriptura  loquatur  ;  per  epistolam  enim  prcesens  videtur  ab- 
seiiti  loqui ;  sed  mortuus  non  loquitur  j  ideo  cessat  prcesumptio  seu 
conjectura.^'   .   .   . 

Alexander,  lib.  5,  Consilium  22,  No.  9,  professes  the  same 
doctrine:  "  Episiola,"  says  he,  "seu  scriptura  quce  mihi  absenti  d 
te  dirigitur,  ?io?i  potest  acceptari  et  ratificari  per  me,  7nort2io  illo 
scribcnte  seu  illo  qui  scripturam  ad  me  dirigebat.  .  .  .  Quia,  mortuo 
eo,  non  potest  did  quod  scriptura  ejus  loquatur. 

The  same  language  is  used  by  Benvenuttus  Straccha,  in  his 
treatise  De  Mercatura,  title  De  Probationibus,  No.  16  :  "  Quod 
diximus  litter  as  quce  inter  absentes  mittuntur  probare,  non  procedit  ubi 
antequatn  ei  cui  scriptce  sunt  litterce  traditce  fuissent,  decessisset  is  qui 
scripsisset.  Cujus  rei  ilia  ratio  redditur,  quia  per  litteras  absens  abseti- 
tem  dicitur  alloqui ;  non  ergh  did  potest  alloqui  qui  misit,  si  antequam 
trader entur  decessit. 

The  same  author,  in  his  treatise  De  Abjecto,  last  part.  No.  8, 
adverts  again  to  this  doctrine,  and  he  opposes  to  it  an  objec- 
tion :  "  Every  one  agrees,"  says  he,  "  that  he  who  contracts  by 
letter  is  considered  as  binding  himself  at  the  moment  when  he 
writes  ;  the  contract  is  therefore  perfect  on  his  side  at  the  in- 
stant when  the  letter  leaves  his  hands  ;  mittens  epistolafn  consentit 
CO  tempore  quo  mittit.  But,"  he  answers,  "  although  he  who 
writes  a  letter  obligatory  truly  consents  at  the  instant  when  he 
causes  it  to  start,  his  consent  only  binds  him  because  he  persists 
in  it  up  to  the  moment  when  his  letter  reaches  its  address  :  et 
huic  objectioni  respondeo  quod  licet  mittens  consentiat  tempore  quo  mittit, 
verum  est  etiam  consentire  tonpore  quo  litterce  tradentur,  quia  durat 
primus  (consensus),  et  ex  quod  non  reperitur  mutata  voluntas,  prce- 
sumitur  durare.  And  for  this  reason,"  continues  he,  '"  if  death 
chances  to  overtake  you  before  the  letter  by  which  you  oblige 
yourself  to  me  is  delivered  to  me,  your  obligation  falls,  and  I 
cannot  avail  myself  of  it  against  your  heirs  :  und^  si  epistola  a  te 
missa  mihi  inscripta  est,  te  mortuo  cUm  mihi  traditur,  acceptari  a  me 
non  potest. 


SEC.  If.]  S V.  F ,    D ,  AND    OTIIKKS.  I  55 

Baldus  upon  law  i,  D.  Mandati,  explains  himself  in  precisely 
the  same  manner  :  "  Licet  mtitens  conscntiat  tempore  quo  viittit^ 
tamen  consentit  tempore  quo  epistola  pervenit  ad  eum  ciii  mittitur,  quia 
Jurat  primus  consensus  ;  ex  quo  non  reperitur  mutatus,  voluntas  proc- 
sumitur  durare  j  et  ideb  puto  quod  si  antequiz/n  perveniat  epistola, 
morietur  mittens  vel  efficiatur  furiosus,  quod  tunc  non  contrahatur 
obligatio  per  epistolam,  quia  non  durat  voluntas  nee  intervenit  consensus 
tutic  temporis. 

Pothier,  whom  the  demandant  cites  to  you  as  teaching  the 
contrary  in  his  Traite'  du  Contrat  dc  Vente,  says,  however,  neither 
more  nor  less.  After  having  established  that  the  agreement 
upon  the  thing  and  the  price,  of  which  the  contract  of  sale  is 
composed,  can  take  place  between  the  absent  by  letters,  he 
adds  :  "  In  order  that  the  agreement  should  take  place  in  tliis 
case,  it  is  necessary  that  the  will  of  the  party  who  writes  to  the 
other  to  propose  to  him  the  bargain  should  continue  until  the 
time  when  his  letter  shall  reach  the  other  party,  and  the  latter 
shall  declare  that  he  accepts  the  bargain."  Pothier,  therefore, 
acknowledges  very  clearly  that  the  consent  written  in  a  letter 
only  becomes  irrevocable  by  the  delivery  of  the  letter  to  him  for 
whom  it  is  intended  ;  he  acknowledges,  therefore,  very  clearly 
that,  so  long  as  the  letter  has  not  reached  that  person,  he  who 
wrote  it  can  revoke  its  contents. 

Be  it  well  observed,  moreover,  Pothier  does  not  limit  his  de- 
cision to  the  case  where  the  letter  is  carried  by  the  messenger 
of  him  who  wrote  it  ;  so  far  from  it,  he  applies  it  specially  to 
the  case  of  a  letter  written  from  Orleans  to  Leghorn — that  is  to 
say,  to  a  case  where  correspondence  is  very  seldom  carried  on 
except  by  post,  true  messenger  of  the  public,  and  consequently 
to  a  case  where,  by  the  terms  of  the  Roman  laws  invoked  by 
the  demandant,  he  to  whom  a  letter  is  addressed  becomes  pro- 
prietor of  it  at  the  instant  when  the  writer  parts  with  it  ;  and 
therefore  it  is  evident  that  Pothier,  who,  according  to  the  ex- 
pression of  the  demandant,  knew  well  the  text  of  those  laws, 
himself  condemns  the  inference  which  the  demandant  seeks  to 
draw  from  them. 

But,  exclaims  the  demandant,  Pothier  does  not  say  that  it  is 
necessary,  for  the  completion  of  a  contract  of  sale,  that  the 
answer  of  acceptance  should  reach  the  proposer. 

No  ;  he  does  not  say  it  expressly,  and  why  ?  Because  there 
is  no  need  of  saying  it,  it  being  understood.  And  in  fact  the 
consent  of  him  who  accepts  the  proposed  bargain  is  of  no  other 
nature  than  the  consent  of  him  who  makes  the  proposal  ;  both 
consents  are  equally  necessary  for  the  completion  of  the  con- 
tract.     If,  therefore,  he  who  proposes  is  not  bound  by  the  propo- 


156  S V.  F ,   D ,  AND   OTHERS.  [CHAP.  I. 

sition,  when  he  retracts  it  before  it  has  reached  its  address,  he 
who  accepts  can  no  more  be  bound  by  his  acceptance,  when  he 
retracts  it  before  it  has  reached  the  author  of  the  proposition. 

And  here  recurs  the  comparison,  which  we  made  just  now,  of 
the  consent  expressed  by  a  letter  addressed  to  an  absent  person, 
with  the  consent  expressed  by  words  addressed  to  a  person 
present. 

I  find  myself  in  the  presence  of  a  deaf  person  who  says  to 
me  :  Will  you  buy  of  me  such  a  thing  for  such  a  price  ?  I 
answer  him  :  I  will  ;  but  he  does  not  hear  he  ;  he  declares  to 
me  that  he  has  not  heard  me,  and  he  prays  me  to  give  him  in 
writing  the  answer  which  he  judges,  by  the  movement  of  my 
lips,  that  I  have  made  to  him.  Then  I  take  a  pen  and  trace  for 
him  these  words  :  I  said  that  I  would,  but  on  further  reflection 
your  proposition  is  not  satisfactory.  Could  this  man  pretend 
that,  by  the  answer  which  I  admit  that  I  made  to  him  viva  voce, 
I  am  bound  to  him  irrevocably  ?  Certainly  not  ;  and  if  he 
prosecuted  me,  the  judge  would  dismiss  him  without  hesitation. 

Wherefore  would  it  be  otherwise  in  the  case  of  a  letter  written 
to  an  absent  person  ?  Because  the  absent  person  has  become 
proprietor  of  my  letter  from  the  moment  when  it  left  my  hands  ? 
But  let  us  take  another  comparison. 

A  man  has  in  his  cabinet  an  acoustic  vault,  constructed  in 
such  a  manner  that,  by  reason  of  the  various  and  extremely 
multiplied  windings  of  the  tubes  which  compose  it,  the  words 
transmitted  through  one  of  the  extremities  do  not  reach  the 
other  till  after  a  space  of  five  minutes.  I  am  in  the  presence  of 
that  man,  and  in  his  cabinet  in  question.  There,  after  saying 
to  me  :  Will  you  buy  of  me  such  a  thing  for  such  a  sum  ?  he 
adds  :  Answer  me  by  my  acoustic  vault.  Thereupon  we  take 
our  places,  I  at  one  of  the  extremities  of  his  vault,  he  at  the 
other  ;  and  I  say  to  him  by  this  speaking  trumpet  :  I  will.  But 
a  minute  after  I  change  my  resolution  ;  I  run  to  him,  and 
before  he  has  been  able  to  hear  my  answer,  I  say  to  him  :  I  will 
not.  Could  he,  after  having  heard  the  answer  which  I  made 
to  him  at  first  by  his  acoustic  vault,  pretend  that  this  answer 
having  been  transmitted  to  him  by  tubes  of  which  he  was  pro- 
prietor, and  having  consequently  become  his  property  at  the 
very  instant  that  it  left  my  mouth,  I  could  not  retract  it  before 
it  had  struck  his  ear  ?  No,  emphatically  no  ;  a  hundred 
times  no  ! 

For  the  same  reason,  the  obligation  which  I  contract  by  a 
letter  to  an  absent  person  does  not  bind  me,  so  long  as  the 
absent  person  to  whom  I  have  addressed  that  letter  has  not 
received  it. 


SEC.  I^r.]  S T'.  F ,    D ,   AND    OTHKRS.  I  57 

Therefore,  we  ought  to  hold  it  as  very  evident  that,  if  the 
demandant  had,  before  the  arrival  of  the  first  letter  of  Jan- 
uary 23d,  caused  a  second  letter  to  reach  the  Messrs.  D.,  by 
which  he  had  declared  to  them  that  he  revoked  the  acceptance 
which  he  had  made  of  their  propositions  by  the  first,  the 
Messrs.  D.  would  not  have  had  any  action  against  him  to  com- 
pel him  to  execute  the  bargain  which  was  negotiating  between 
him  and  them. 

But  what  the  demandant  could  do  by  a  second  letter  arriving 
before  the  first,  could  he  not  do  equally  by  a  second  letter 
which,  without  anticipating  the  first,  reached  the  Messrs.  D.  at 
the  same  time  ?  Yes,  without  doubt  he  could  :  the  two  letters 
arriving  together,  the  Messrs.  D.  could  not  say  that  the  consent 
expressed  by  the  first  still  subsisted  ;  they  could  not  say  that 
the  dumb  agent,  whom  the  demandant  had  sent  to  them  by  the 
first,  still  had  power  to  manifest  to  them  his  consent  ;  they 
would  have  been  forced  to  regard  the  second  as  taking  from  the 
first  all  credit. 

Assuming  that,  our  question  resolves  itself  in  the  same  man- 
ner. Since  the  demandant  could,  by  a  second  letter  arriving  at 
the  same  time  as  the  first,  revoke  in  a  definitive  and  absolute 
manner  the  acceptance  contained  in  the  first,  it  is  clear  that  he 
could  equally,  by  such  second  letter,  modify  that  acceptance  ; 
that  he  could  equally  retract  the  assurance  which  he  had  given 
by  the  first,  that  the  crew  would  be  ready  by  February  5th,  and 
substitute  for  it  a  simple  promise  to  do  everything  in  his  power 
to  that  end  ;  that  he  could  equally  restore  to  a  state  of  negotia- 
tion what  by  the  first  he  had  concluded  definitively  ;  in  a  word, 
that  he  could  equally  give  to  the  Messrs.  D.  the  right  to  recon- 
sider their  propositions  and  retract  them. 

The  decree  of  the  Court  was  in  the  following  terms  : 

Considering  that  the  decree  attacked  has  only  interpreted  a 
correspondence  held  between  two  parties  upon  commercial 
agreements,  and  that,  therefore,  it  has  not  violated  any  law, 
the  Court  rejects  the  appeal. 


.158  BLAKE  &   CO.    V.    HAMBURG   FIRE   INS.    CO.     [cHAP.  I. 


J.   H.  BLAKE   &   CO.   v.   HAMBURG   BREMEN    FIRE 
INSURANCE   COMPANY. 

In  the  Supreme  Court  of  Texas,  Tyler  Term,  1886. 

[Reported  in  67  Texas  Reports  160.] 

Appeal  from  Harris.  Tried  below  before  the  Hon.  James 
Masterson. 

Crank  &-  Taliaferro  for  appellant. 

Hutcheson  6^  Carrington  for  appellee. 

Gaines,  A.J.  At  the  time  the  transactions  occurred  which 
gave  rise  to  this  litigation,  Cotton  &  Brother  were  agents  repre- 
senting appellee,  and  also  a  large  number  of  other  companies 
doing  a  business  of  fire  insurance.  O.  L.  Cochran  at  that  time 
was  also  an  agent  of  still  other  insurance  companies.  Being 
limited  by  his  principals  as  to  the  amount  of  his  risks,  he  was 
not  able  to  meet  in  full  the  demands  of  his  customers.  A  writ- 
ten agreement  was  accordingly  entered  into  between  Cotton  & 
Brother,  as  agents  of  certain  companies  represented  by  them, 
on  the  one  hand,  and  Cochran,  as  agent  on  the  other,  stipu- 
lating that  the  former  would  "  cover  surplus  lines"  of  insurance 
for  the  latter  on  cotton  in  certain  presses  in  the  city  of  Houston. 

The  Insurance  Company  of  North  America,  the  "  Traders'," 
and  appellee  were  each  to  carry  insurance  upon  cotton  in 
the  International  Press  to  the  aniount  of  $5000.  It  is  evident 
from  the  written  contract  and  the  testimony  on  the  trial,  that 
by  the  agreement  between  these  parties  it  was  contemplated 
that  when  Cochran  had  a  demand  for  more  insurance  than  he 
could  carry,  he  should  designate  by  a  memorandum  in  his  office 
the  companies  named  to  which  it  should  be  apportioned  and 
the  amount  allotted  to  each  ;  and  that  when  this  was  done  in- 
surance to  the  amount  so  stated  was  to  be  considered  effected 
in  the  respective  companies  for  twenty-four  hours,  but  no  longer 
unless  reported  by  Cochran  to  Cotton  &  Brother.  There  was 
also  an  agreement  by  Cochran  with  appellees  to  insure  their 
cotton  in  the  International  Press,  and  it  was  understood  between 
them  that  whenever  after  night  appellants  should  mail  a  letter 
to  Cochran  notifying  him  of  the  amount  of  insurance  desired, 
they  were  to  be  deemed  insured  for  that  amount,  from  the  time 
the  letter  was  so  posted. 

On  the  night  of  December  2d,  1882,  Cochran  having  received 
no  application  from  appellants  and  anticipating  that  such  might 
be  made  by  letter  as  agreed  upon,  provided  for  it  by  designating 
by    i\    memorandum    in    his    office    insurance    for    them    to  the 


SEC.  I^.]       BLAKE    &    CO.    7'.    HAMBURG    FIRE    INS.    CO. 


159 


amount  of  $5000  each  in  the  Insurance  Company  of  North 
America,  and  in  the  Hamburg  Bremen  Company — tlie  appellee 
in  this  appeal. 

About  nine  o'clock  on  that  night  appellee  deposited  in  the 
post-office  a  letter  addressed  to  Cochran  notifying  him  to  in- 
crease the  insurance  on  their  cotton  in  the  International  Press 
to  the  amount  of  $10,000.  This  letter  was  not  delivered  until 
December  4th. 

It  is  claimed  by  appellee  that  it  was  not  stamped  when  posted, 
and  there  was  strong  evidence  adduced  on  the  trial  to  support 
this  conclusion. 

Admitting,  for  the  sake  of  argument,  that  no  stamp  had  been 
placed  upon  the  letter,  the  question  arises  was  this  such  a  com- 
pliance with  the  terms  of  the  agreement  between  Cochran  and 
appellants  as  to  complete  either  a  contract  of  insurance  or  a 
contract  for  insurance  in  this  particular  instance.  A  contract 
may  be  consummated  by  letters  deposited  in  the  post-office  ; 
and  when  an  offer  is  made  contemplating  an  acceptance  in  this 
manner,  and  a  letter  accepting  it  is  properly  mailed,  the  agree- 
ment is  complete.  (Adams  v.  Lindsell,  i  B.  &  Aid.  681  ; 
Dunlop  V.  Higgins,  i  H.  L.  C.  381  ;  Tayloe  7'.  Insurance  Co., 
9  Howard,  390.)  We  know  of  no  decision  exactly  in  point 
upon  the  question  of  posting  an  unstamped  letter  ;  it  is  held, 
however,  in  Maclay  v.  Harvey,  90  Illinois,  525,  that  an  offer  to 
be  accepted  by  return  mail  is  not  assented  to  by  delivering  a 
letter  to  a  messenger  to  be  mailed,  who  fails  to  do  this  in  the 
proper  time.  The  cases  are  numerous,  both  in  the  English  and 
American  courts,  which  hold  that  if  the  offer  contemplates  an 
acceptance  through  the  post-office,  the  contract  is  complete  as 
soon  as  the  letter  is  mailed  accepting  it.  But  in  all  these  cases 
the  letters  were  duly  posted.  That  this  is  what  is  intended  by 
such  an  offer,  we  think  quite  obvious,  at  least  in  the  United 
States. 

Our  postal  laws  require  a  prepayment  of  postage  before  a 
letter  can  either  be  transmitted  or  delivered.  (Rev.  Stat.  U.  S. 
arts.  3896,  3900,  3904.)  Without  this,  a  communication  ad- 
dressed to  another  post-office  will  not  be  forwarded,  and  a 
dropped  letter  will  not  be  delivered.  How  is  it,  then,  in  the 
case  before  us  ?  If  the  letter  was  not  prepaid,  was  the  posting 
a  compliance  with  the  condition  upon  which  the  insurance  was 
to  depend  according  to  the  original  agreement  between  Cochian 
and  appellants  ?  That  it  was  not  the  act  contemplated  by  them 
in  making  that  agreement  we  think  evident  from  the  circum- 
stances of  the  cases  and  the  ends  to  be  accomplished  by  the 
letter. 


l6o  BLAKE   &   CO.   V.    HAMBURG   FIRE   IXS.    CO.     [CHAP.  i. 

As  a  prudent  business  man,  Cochran  must  have  had  two  ob- 
jects in  view  in  agreeing  to  this  method  of  effecting  the  insur- 
ance. One  was  to  secure  a  delivery  to  himself  of  written  evi- 
dence of  appellant's  application  for  insurance  ;  the  other  to  get 
prompt  notice  of  the  transaction,  so  that  he  might  protect 
himself  from  liability  by  reporting  the  insurance  to  Cotton  & 
Brother,  and  thereby  keeping  it  in  force. 

We  are  cited  by  appellant's  counsel  to  the  Post-Ofifice  Regu- 
lations, §  439,  we  presume  for  the  purpose  of  showing  that  a 
person  to  whom  an  unstamped  "  dropped"  letter  is  addressed 
may  secure  its  delivery.  Waiving  the  question  whether  we  can 
take  judicial  notice  or  not  of  the  regulations  of  the  departments 
of  the  general  government,  we  think  it  a  sufficient  answer  to 
this  to  say  that  even  under  these  rules  great  delay  in  the  de- 
livery of  a  letter  is  the  probable  result  of  the  omission  to  prepay 
the  postage.  In  this  case  we  are  not  left  to  speculate  upon  this 
matter.  The  testimony  shows  that  there  was  a  delay  of  twenty- 
four  hours  at  least  before  the  letter  was  delivered,  and  that  this 
was  caused  by  the  fact  that  no  stamp  had  been  placed  upon  it. 

Now,  let  us  suppose  that  the  fire  had  occurred  before  the  de- 
livery of  the  letter  and  after  a  lapse  of  twenty-four  hours  from 
the  time  Cochran  made  the  memorandum  in  his  office,  and  that 
in  the  mean  time  he  had  received  no  notice  that  the  letter  had 
been  mailed  or  of  its  contents.  In  such  a  case  could  appellee 
be  held  responsible,  when,  by  the  terms  of  the  contract  made 
by  its  agents,  the  insurance  was  to  expire  if  not  reported  in 
twenty-four  hours?  On  the  other  hand,  could  Cochran  be  held 
liable  for  not  reporting  the  insurance,  when,  by  reason  of  appel- 
lant's neglect,  he  had  failed  to  get  notice  of  their  application  ? 
We  do  not  ask  these  questions  for  the  purpose  of  answering 
them.  That  is  unnecessary  to  the  decision  of  this  case.  We 
propound  them  merely  to  show  that  it  was  a  matter  of  the 
greatest  importance  to  Cochran  that  the  letter  of  appellants 
notifying  him  of  their  desire  or  application  should  have  been 
properly  mailed  and  its  delivery  without  delay  and  without 
additional  expense  to  him  thereby  insured. 

It  follows  from  what  we  have  said  that  in  our  opinion  if  the 
letter  of  appellants  was  not  stamped  when  it  was  deposited  in 
the  post-office,  the  terms  of  the  agreement  in  regard  to  notice 
by  a  mailed  letter  were  not  complied  with.  If  this  be  the  case, 
then  the  "  surplus"  of  insurance,  which  Cochran's  memoran- 
dum was  designed  to  cover,  had  not  been  applied  for  ;  and  the 
contingency  had  not  arisen  which  could  alone  authorize  him  to 
bind  appellee  by  a  designation  in  his  office.  Cotton  &  Brother's 
agreement  was  to  "  cover  surplus  lines  of  insurance"  for  him — 


SEC.  I^.]  HAAS   V.    MYERS   et  al.  l6l 

not  to  insure  cotton  in  advance  before  he  had  an  application  for 
the  insurance.  By  keeping  in  view  these  conclusions  the  assign- 
ments of  error  are  not  difficult  of  determination.' 

Because  we  find  no  error  in  the  judgment,  it  is  affirmed. 

Affirmed. 

Opinion  delivered  December  17th,  1886. 


ANDREW    HAAS  v.  ALFRED    MYERS   et   al. 

In  the  Supreme  Court  of  Illinois,  November  17,  1884. 
[Reported  in  11 1  Illinois  Reports  421.  J 

Appeal  from  the  Appellate  Court  for  the  First  District  ; 
heard  in  that  Court  on  appeal  from  the  Superior  Court  of  Cook 
County  ;  the  Hon.  George  Gardner,  J.,  presiding. 

This  was  a  bill  in  equity,  filed  by  Andrew  Haas,  to  have  him- 
self declared  a  partner  with  Alfred  Myers  in  respect  to  a  certain 
lot  of  cattle,  and  for  an  accounting. 

The  material  facts  appearing  are,  that  during  1882,  Haas's 
business  was  buying  cattle,  and  shipping  them  to  sell  in  the 
Chicago  market  ;  that  during  the  same  time,  Alfred  and  Ben- 
jamin Myers,  and  William  H.  and  James  E.  Martin,  were  en- 
gaged in  the  same  business,  Alfred  and  Benjamin  Myers  as 
partners  under  the  firm  name  of  A.  Myers  &  Bro.,  and  the 
Martins  as  partners  under  the  name  of  Martin  &  Bro.,  and  dur- 
ing that  time  the  Myers  and  Martins  were  jointly  engaged  in 
the  same  business.  Prior  to  September  20th,  1882,  Haas  and 
Alfred  Myers  had,  respectively,  been  negotiating  for  the  pur- 
chase of  a  lot  of  cattle  in  Montana,  known  as  the  "  Murphy 
herd,"  and  on  that  day,  Alfred  Myers  being  about  to  visit  the 
range  where  the  cattle  were  kept,  the  two  agreed  that  Myers 
would  ascertain  at  what  price  the  cattle  could  be  purchased, 
and  buy  them  if  he  saw  fit  ;  thafc  in  case  he  bought,  he  should 
telegraph  Haas  at  Chicago,  indicating  the  price  per  head  ;  that 
thereupon  Haas  was  to  reply  by  telegraph,  at  once  and  without 
delay,  saying  "Yes,"  or  "No;"  that  if  he  replied  "yes," 
Myers,  on  receipt  of  the  telegram,  was  to  telegraph  back  to 
Haas  the  estimated  amount  required  to  pay  for  one-third  inter- 
est in  the  cattle,  which  amount  Haas  was  at  once  to  place  to  the 
credit  of  A.  Myers  &  Bro.,  at  the  First  National  Bank  of 
Chicago,  in  order  that  Myers  &  Bro.  could  immediately  draw 
for  the  same  to  pay  toward  the  cattle,  and   Haas  was  to  cause 

'  The  discussion  of  the  assignments  of  error  has  been  omitted. — En. 


1 62  HAA^   V.    MYERS   £'/   a/.  [CHAP.  I, 

the  bank  to  telegraph  such  credit  to  A.  Myers  &  Bro.  at  Billings, 
Mont.,  which  being  done,  Haas  was  to  have  one-third  interest 
in  the  cattle.  Myers  proceeded  to  the  range,  and  on  Septem- 
ber 26th  made  a  trade  with  Joseph  Murphy  for  the  cattle,  at  $45 
per  head  all  around,  the  cattle  to  be  taken  at  the  ranch,  Myers 
paying  $5000  cash  down  as  earnest  money  to  bind  the  bargain, 
and  agreeing  to  pay  $15,000  more  before  the  cattle  were  moved, 
and  the  balance  of  the  purchase  price  at  the  time  of  the  final 
shipment  of  the  cattle  at  Billings,  Mont.,  the  purchase  price 
being  about  $55,000,  and  agreeing  also  that  the  cattle  should  be 
moved  within  thirty  days.  The  trade  was  to  be  concluded  at 
Billings.  Murphy  and  Myers  proceeded  to  Billings,  arriving 
there  on  September  28th,  and  on  the  same  day  Myers  tele- 
graphed to  Haas  at  Chicago,  as  follows  : 

"  Do  you  want  Murphy's  forty-five,  at  ranch  ?     Answer. 

"  A.  Myers." 

At  once  on  receiving  this,  and  on   September  29th,  Haas  tele- 
graphed back  : 

"  Yes,  I  will  take  third  interest.  Will  leave  for  Billings  to- 
night." 

This  despatch  never  reached  Myers  or  Billings.  Later,  and 
within  an  hour,  Haas  sent  a  further  despatch  : 

"  If  Murphy  cattle  are  good,  there  is  no  danger  in  buying 
them.     Davis-Hauser  cattle  sold  close  to  five  cents  through. 

"  A.  Haas." 

This  despatch  was  received  by  Myers  on  October  2d.  No 
other  despatch  or  information  than  this  last  one  being  received 
from  Haas  by  Myers,  though  Myers  inquired  frequently  at  the 
telegraph  office  for  any  reply  from  Haas,  and  in  the  mean  time 
William  H.  Martin,  one  of  the  partners,  having  joined  Myers 
and  Murphy  at  Billings,  on  October  2d  the  contract  with 
Murphy  was  concluded,  and*  Myers  and  Martin  themselves 
raised  and  paid  the  whole  $15,000,  Murphy  having  refused  to 
wait  any  longer,  and  declared  that  if  it  were  not  paid  on  that  day 
he  would  refund  the  $5000  already  paid,  and  "  call  the  trade 
off."  The  next  day  (October  3d)  Haas  appeared  at  Billings 
and  claimed  a  third  interest  in  the  contract,  insisting  that  he 
had  sent  to  Myers  the  first  above-mentioned  despatch.  Myers 
informed  Haas  that  he  had  never  received  any  such  telegram, 
but  had  received  the  one  last  named,  about  there  being  "  no 
danger  in  buying"  the  cattle,  etc.,  and  that  only,  and  that  he 
and  Martin  had   raised  and  paid  the  necessary  funds  the  day 


SEC.  ic]  HAAS   V.    MYERS   i'f  al.  163 

before,  and  that  he  (Haas)  was  entitled  to  no  interest  in  the 
purchase.  Haas  and  Myers  went  together  to  the  telegraph 
offices  at  Billings,  to  ascertain  whether  or  not  such  despatcli 
(the  one  first  named)  had  been  received  there.  It  was  ascer- 
tained that  no  such  despatch  had  been  received  there,  and 
Myers  reiterated  his  refusal  to  permit  Haas  to  have  any  interest 
in  the  cattle,  notwithstanding  Haas  stated  that  he  was  ready  to 
pay  his  share,  and  to  do  what  might  be  required  of  him.  Myers 
and  his  associates  shipped  the  cattle  to  Chicago,  and  made  a 
net  profit  thereon  of  $19,100.  That  amount  remained  in  the 
hands  of  Adams  &  Burke,  commission  merchants  at  Chicago. 

This  bill  was  filed  October  31st,  1882,  praying  that  Haas 
might  be  declared  to  be  a  partner  to  the  extent  of  one-third 
interest  in  the  purchase  of  the  cattle  ;  that  an  accounting  might 
be  had  between  the  partners,  and  a  decree  granted  the  com- 
plainant for  the  one-third  share  of  the  net  profits,  and  an  injunc- 
tion restraining  the  payment  over  of  the  money  by  Adams  & 
Burke.  A  temporary  injunction  was  granted,  and  afterward,  on 
the  final  hearing,  the  injunction  was  dissolved  and  the  bill  dis- 
missed. On  appeal  to  the  Appellate  Court  for  the  First  Dis- 
trict the  decree  was  affirmed,  and  a  further  appeal  taken  to  this 
Court. 

Dupee,  Judah  6^  Willard  for  the  appellant. 

Judd  &=  Whitehouse  and  William  Ritchie  for  the  appellees. 

Sheldon,  J.,  delivered  the  opinion  of  the  Court  : 

It  is  insisted  upon  on  the  part  of  the  appellant,  that  the  part- 
nership here  claimed  was  actually  formed  ;  that  if  there  was 
not  a  literal  there  was  a  substantial  performance  by  Haas  of  the 
conditions  of  the  contract  ;  that  he  did  all  that  he  could — tele- 
graphed, as  he  had  agreed,  his  acceptance — and  could  do  no 
more  until  action  by  Myers  ;  that  not  putting  up  his  share  of 
the  money  in  the  manner  provided,  was  because  of  the  failure 
of  Myers  to  advise  him  by  telegram  of  the  amount  necessary  ; 
that  the  telegraphic  acceptance  sent  by  Haas,  although  not  re- 
ceived, had  all  the  legal  effect  it. could  have  had  if  it  had  been 
received  by  Myers.  In  support  of  this  last  proposition  the  rule 
governing  the  negotiation  of  contracts  by  correspondence 
through  the  mail  is  appealed  to,  and  it  is  contended  the  same 
rule  applies  in  the  negotiation  of  a  contract  by  telegraph — that 
rule  being,  that  where  parties  undertake  to  contract  by  letter, 
and  one  party  makes  a  proposal  by  letter,  and  the  other  by 
letter  accepts  and  posts  his  acceptance,  the  minds  of  the  parties 
have  met,  and  from  the  instant  of  mailing  the  acceptance  the 
contract  is  a  valid  and  binding  one.  See  Household  Fire  Ins. 
Co.  V.  Grant,   L.   R.   4  Exch.   Div.  216  ;  Tayloe  v.  Merchants* 


164  HAAS   V.    MYERS   ct  al.  [cHAP.  I. 

Fire  Ins.  Co.,  9  How.  390  ;  Mactier  v.  Frith,  6  Wend.  103  ; 
Hallock  V.  Insurance  Co.,  2  Dutch.  268  ;  Minnesota  Oil  Co.  v. 
Collier  Lead  Co.,  4  Dill.  431  ;  Abbott  v.  Shepard,  48  N.  H.  14  ; 
Trevor  v.  Wood,  36  N.  Y.  307  ;  Pomeroy  on  Contracts,  95,  and 
cases  there  cited.  Although  there  be  contrary  authority  that  a 
contract  made  by  mutual  letters  is  not  complete  until  the  letter 
accepting  the  offer  has  been  received  by  the  person  making  the 
offer  (see  Lewis  v.  Browning,  130  Mass.  175),  we  regard  the 
weight  of  authority  to  be  in  favor  of  the  rule  as  first  above 
stated.  A  distinction  has  been  taken,  that  though  in  general 
such  a  contract  takes  effect  from  the  time  of  acceptance,  and 
not  from  the  subsequent  notification  of  it,  yet  the  offerer  may 
not  be  bound  by  the  fact  that  the  letter  of  acceptance  had  been 
put  in  the  post-office,  if  the  letter  never  reached  its  destination. 
The  preponderance  of  authority  does  not  appear  to  sustain  this 
distinction,  but  to  hold  that  the  mailing  of  the  letter  of  accept- 
ance completes  the  contract,  whether  the  letter  reaches  its  des- 
tination or  not.  In  the  above  cases,  in  4.  Dill,  and  36  N.  Y.,  it 
was  held  that  the  same  rule  applied  in  the  case  of  correspond- 
ence by  telegraph  as  in  the  case  of  correspondence  through  the 
mail.  Whether  the  rule  does  so  fully  apply  in  the  former  case 
we  do  not  find  it  necessary  now  to  determine,  as,  conceding 
that  it  does,  we  do  not  consider  that  the  rule  has  application  to 
the  facts  of  the  present  case.  We  think  that  under  the  arrange- 
ment entered  into  between  the  parties,  the  formation  of  the 
contract  was  made  dependent  upon  the  actual  communication 
by  telegraph,  to  Myers,  of  Haas's  acceptance.  This  is  not  the 
case  of  an  offer  made,  and  where  the  simple  acceptance  com- 
pletes the  contract  between  the  parties.  Haas's  reply,  if  it  had 
reached  Myers,  was  not  the  conclusion  of  the  bargain.  Con- 
siderable remained  to  be  done  afterward,  on  both  sides.  Myers, 
after  receipt  of  the  despatch,  was  to  telegraph  again,  giving  the 
amount  to  be  deposited.  Haas  was  to  deposit  this  amount. 
The  bank  was  then  to  telegraph  the  credit  to  Myers,  so  as  to 
make  it  available  for  the  purchase  of  the  cattle. 

We  think,  too,  the  terms  of  the  contract  imply  that  Haas's 
answer  that  he  would  take  a  third  interest,  should  actually 
reach  Myers,  and  within  a  very  short  time,  or  the  contract 
would  not  be  binding.  A  large  purchase  was  involved,  requir- 
ing the  payment  of  a  considerable  amount  of  money.  Prompt- 
ness was  necessary,  and  it  was  important  that  Haas  should  fur- 
nish his  share  of  the  purchase-money  necessary  to  complete  the 
purchase.  It  was  uncertain  whether  the  cattle  would  be  pur- 
chased by  Myers,  and  if  so,  whether  Haas  would  want  a  third 
interest  in  them  at  the  price  they  could  be  purchased  for.     It 


SEC.  ic]  HAAS   V.    MYERS   r/  a/.  165 

was  therefore  arranged  that  if  Myers  purchased,  he  should  tele- 
graph Haas  the  price  per  head,  and  if  Haas  wanted  a  third 
interest  at  the  price,  he  should,  immediately  after  receiving 
Myers's  despatch,  answer  back,  by  telegraph,  "  Yes"  or  "  No." 
If  the  answer  was  "yes,"  then  Myers  would  immediately  in- 
form Haas,  by  telegraph,  of  the  amount  of  money  that  would 
be  required  to  be  placed  to  the  credit  of  A.  Myers  &  Bro.  at  the 
First  National  Bank  in  Chicago,  in  order  to  secure  a  third 
interest  in  the  purchase  of  the  cattle.  Now,  Haas  never  did 
advise  Myers,  by  telegraph,  that  he  would  take  an  interest. 
No  such  telegram  ever  came  to  Billings,  the  place  of  destina- 
tion. Manifestly,  delivering  the  message  containing  an  affirma- 
tive reply  to  the  telegraph  office  for  transmission,  did  not 
answer  the  purpose.  Myers  could  not  act  upon  that  mere 
delivery.  He  must  have  knowledge.  Haas  was  to  telegraph, 
and  if  the  answer  was  "  yes,"  Myers  was  to  telegraph  back  the 
amount  of  money  required  ;  but  he  could  not  telegraph  back 
what  was  the  amount  of  money  needed  until  he  was  informed 
of  Haas's  desire  to  take  a  third  interest,  until  he  had  received 
the  telegram  "  yes."  This  shows  that  it  was  in  the  contempla- 
tion of  the  parties  that  this  telegram  should  not  merely  have 
been  deposited  for  transmission,  but  that  it  should  have  been 
transmitted  and  been  received  before  there  could  arise  between 
the  parties  any  completed  contract.  It  was  essential  that  noti- 
fication of  Haas's  desire  to  have  a  part  in  the  purchase  should 
have  come  to  Myers,  to  enable  him  to  inform  Haas  of  the 
amount  of  money  needed  from  him,  and  so  enable  Haas  to  per- 
form on  his  part  by  furnishing  his  share  of  the  purchase-money. 
But  further,  within  an  hour  after  depositing  in  the  telegraph 
office,  for  transmission,  his  telegram  of  acceptance — "  yes" — 
Haas  sends  this  misleading  despatch  :  "  If  Murphy  cattle  are 
good,  there  is  no  danger  in  buying  them,"  and  this  telegram 
was  received  by  Myers  October  2d,  and  was  the  only  one  re- 
ceived by  him,  or  that  ever  came  to  Billings  in  answer  to  his 
inquiry  if  Haas  wanted  an  interest  in  the  purchase.  What  was 
Myers  to  understand  from  this  ?  If  Haas  wanted  an  interest  in 
the  cattle,  the  telegram  agreed  upon  between  him  and  Myers 
by  which  he  should  signify  that  wish,  was  the  word  "  yes." 
This  was  not  such  a  telegram,  and  it  did  not  express  any  idea 
that  Haas  wanted  or  would  take  an  interest  in  the  cattle.  It 
stated  merely  that  upon  a  certain  hypothesis — if  the  Murphy 
cattle  are  good — there  is  no  danger  in  buying  them.  We  think 
that  Myers  was  justified  in  taking  this  despatch  sent  by  Haas, 
as  an  abandonment  of  all  interest  in  the  contract,  or  at  least  ;.s 
denoting  a  want  of  consent  on   Haas's  part  to  take  an  interest 


l66  LEWIS   V.    BROWNING.  [CHAP.  I. 

in  the  cattle,  and  a  want  of  intention  of  completing  the  pro- 
posed contract  in  furnishing  a  part  of  the  purchase-money,  and 
that  Myers  could  not  place  further  reliance  thereon,  but  might 
well  proceed  in  the  completion  of  the  purchase  from  Murphy, 
by  raising  himself,  and  with  the  assistance  of  Martin,  the  whole 
amount  of  the  $15,000  required  to  be  paid  on  that  day  to 
Murphy,  and  claim  the  purchase  as  being  his  own,  to  the  exclu- 
sion of  Haas  from  any  share  in  it.  This  second  telegraphic 
despatch  did  not  come  within  any  arrangement  made  between 
Haas  and  Myers,  but  was  Haas's  own  independent,  voluntary 
act,  and  he  alone  is  to  blame  for  its  misleading  effect.  The 
$15,000  which  was  to  have  been  paid  on  moving  the  cattle  from 
the  ranch,  Murphy  was  insisting  must  be  paid  on  October  2d, 
or  that  he  would  refund  the  $5000  paid,  and  declare  the  trade 
"  off,"  that  he  would  not  wait  any  longer.  Myers  and  Martin, 
after  receipt  of  that  despatch,  raised  the  money  on  that  day, 
and  paid  it.  To  be  sure,  Haas  appeared  in  person  at  Billings 
the  next  day,  and  offered  to  perform.  This,  we  think,  was  too 
late.  It  would  not  be  a  substantial  performance.  It  was  essen- 
tial that  he  should  have  performed  before  ;  that  he  should  have 
contributed  his  share  to  the  payment  of  the  purchase-money 
that  was  paid  to  Murphy  ;  that  he  could  not,  after  leading 
Myers  to  think  that  he  did  not  want  an  interest  in  the  purchase, 
and  the  latter  and  Martin  raising  and  paying  all  the  purchase- 
money  required,  come  in  afterward,  though  only  the  next  day, 
and  then  offer  to  pay  his  share  of  the  money,  and  demand  the 
right  of  participation  in  the  purchase.  To  have  then  admitted 
Haas  into  the  purchase  would  have  been  but  a  matter  of  favor 
with  Myers — not  of  obligation. 

We  think  the  decree  dissolving  the  injunction  and  dismissing 
the  bill  was  right,  and  the  judgment  of  the  Appellate  Court 
will  be  affirmed. 

Judgment  affirmed. 

HELEN    C.  LEWIS  v.  MATTHEW   P.  BROWNING. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
January  6,  1881. 

{Reported  in  130  Massachusetts  Reports  173.] 

Contract  for  breach  of  the  covenants  of  a  written  lease  of  a 
tenement  in  Boston.  Trial  in  the  Superior  Court,  without  a 
jury,  before  Rockwell,  J.,  who  allowed  a  bill  of  exceptions  in 
substance  as  follows  : 

The  defendant  admitted  that  there  had  been  a  breach  of  the 


SEC.  ic]  LEWIS   1'.    BROWNING.  1 6/ 

conditions  of  the  lease,  and  agreed  that  judgment  miglit  be 
entered  for  the  plaintiff  in  the  sum  of  $2168.22,  unless  the  facts 
herein  stated  constituted  a  defence  to  this  action. 

The  judge  found  that  the  defendant,  who  was  a  resident  of 
.New  York  in  the  year  1868,  was,  during  the  summer  of  that 
year,  temporarily  residing  and  practising  his  profession  as  a 
physician  at  Cape  May,  in  the  State  of  New  Jersey,  and  that 
the  plaintiff  and  her  husband,  Dr.  Dio  Lewis,  residents  of 
Boston  at  that  time,  were  temporarily  residing  at  Oakland,  in 
the  State  of  California  ;  that  on  June  loth,  1878,  Lewis,  who 
was  and  still  is  the  authorized  agent  of  his  wife,  the  plaintiff, 
wrote  the  defendant  a  letter,  which  was  received  by  him,  in 
which  he  requested  the  defendant  to  make  him  an  offer  for  a 
new  lease  of  said  premises.  The  defendant  replied,  making 
such  offer,  by  letter  dated  June  22d,  1878.  In  this  letter  the 
defendant  gave,  as  a  reason  for  desiring  to  make  the  new  con- 
tract, his  anxiety  to  be  released  from  all  claim  by  the  plaintiff. 

On  July  8th,  1878,  Lewis  wrote  the  defendant  a  letter,  which 
he  received  on  July  17th,  1878,  at  Cape  May,  in  which  Lewis 
accepted  the  defendant's  offer,  with  slight  modifications,  and 
which  contained  the  following  :  "  If  you  agree  to  this  plan,  and 
will  telegraph  me  on  receipt  of  this,  I  will  forward  power  of 
attorney  to  Mr.  Ware.  Telegraph  me  *  yes  '  or  '  no.'  If  '  no  ' 
I  will  go  on  at  once  to  Boston  with  my  wife,  and  between  us 
we  will  try  to  recover  our  lost  ground.  If  I  do  not  hear, from 
you  by  the  18th  or  20th,  I  shall  conclude  '  no.'  " 

The  defendant,  on  said  July  17th,  went  to  the  telegraph  office 
of  the  Western  Union  Telegraph  Company  in  Cape  May,  wrote 
a  telegraphic  despatch  directed  to  Dio  Lewis,  Oakland,  Cal., 
delivered  it  to  the  telegraphic  agent  and  operator  of  said  com- 
pany, and  paid  the  full  price  for  its  transmission  to  Oakland, 
and  gave  directions  to  have  it  forwarded  at  once.  The  de- 
fendant did  not  keep  a  copy  of  the  telegram.  He  gave  notice 
to  the  plaintiff  to  produce  the  telegram,  and  testified  that  he 
had  exhausted  all  the  means  in  his  power  in  Boston,  New  York, 
and  New  Jersey,  in  his  endeavors  to  produce  the  telegram  ; 
that  he  had  been  to  the  Cape  May  office  of  the  company,  and 
had  learned  that  the  operator  to  whom  he  gave  his  despatch 
was  not  in  charge  of  that  office  ;  that  he  had  made  diligent 
search  for  him  without  being  able  to  learn  his  whereabouts  ; 
and  that  in  this  search  he  had  had  the  aid  of  the  superintendent 
and  other  officers  of  the  company  in  Boston.  He  also  offered 
to  prove,  by  an  officer  of  the  company  in  Boston,  that  both  by 
rule  and  custom  of  the  company,  so  far  as  he  knew  the  custom, 
the  despatches  received  and  sent  from  all  the  offices  of  the  com- 


l68  LEWIS   V.   BROWNING.  [CHAP.  I. 

pany  were  destroyed  after  they  had  been  in  the  possession  of 
the  company  six  months.  If,  under  these  circumstances,  it  was 
competent  to  prove  the  contents  of  said  despatch  by  oral  testi- 
mony, the  judge  found  that  the  word  telegraphed  was  "  yes." 

The  judge  also  found  that  Lewis  never  received  said  tele- 
gram ;  that  the  new  lease  to  be  made,  as  stipulated  in  the  let- 
ters of  Lewis  and  the  defendant,  was  to  be  like  the  former  lease 
in  form,  with  the  various  modifications  and  changes  contained 
in  said  letters,  and  was  to  be  delivered  in  Boston,  and  the  con- 
sideration then  paid  ;  and  that  the  Mr.  Ware  mentioned  in 
Lewis's  letter  was  the  plaintiff's  attorney,  residing  in  Boston. 

The  defendant  contended  that  a  contract  was  completed  by 
said  letters  and  telegram  on  July  17th,  under  the  law  of  the 
State  of  New  Jersey  ;  and  that  this  case  was  controlled  by  the 
law  of  New  Jersey.  The  judge  found  that  the  law  of  New 
Jersey  is  as  stated  in  Hallock  v.  Commercial  Ins.  Co.,  2  Dutcher, 
268  ;  ruled,  as  matter  of  law,  that  the  facts  as  above  set  forth 
did  not  show  a  new  contract,  and  constituted  no  defence  to  this 
action  ;  and  found  for  the  plaintiff  in  the  sum  agreed  upon. 
The  defendant  alleged  exceptions. 
O.  T.  Gray  for  the  defendant. 

Z>.  E.  Ware,  for  the  plaintiff,  was  not  called  upon. 
Gray,  C.J.  In  M'Culloch  v.  Eagle  Ins.  Co.,  i  Pick.  278,  this 
Court  held  that  a  contract  made  by  mutual  letters  was  not  com- 
plete until  the  letter  accepting  the  offer  had  been  received  by 
the  person  making  the  offer  ;  and  the  correctness  of  that  de- 
cision is  maintained,  upon  an  able  and  elaborate  discussion  of 
reasons  and  authorities,  in  Langdell  on  Contracts  (2d  ed.)  989- 
996.  In  England,  New  York,  and  New  Jersey,  and  in  the 
Supreme  Court  of  the  United  States,  the  opposite  view  has  pre- 
vailed, and  the  contract  has  been  deemed  to  be  completed  as 
soon  as  the  letter  of  acceptance  has  been  put  into  the  post-office 
duly  addressed.  Adams  v.  Lindsell,  i  B.  &  Aid.  681  ;  Dunlop  z^. 
Higgins,  I  H.  L.  Cas.  381,  398-400  ;  Newcomb  v.  De  Roos, 
2  E.  &  E.  271  ;  Harris's  Case,  L.  R.  7  Ch.  587  ;  Lord  Blackburn 
in  Brogden  v.  Metropolitan  Railway,  2  App.  Cas.  666,  691,  692  ; 
Household  Ins.  Co.  v.  Grant,  4  Ex.  D.  216  ;  Lindley,  J.,  in 
Byrne  v.  Van  Tienhoven,  5  C.  P.  D.  344,  348  ;  2  Kent  Com.  477, 
note  c  ;  Mactier  v.  Frith,  6  Wend.  103  ;  Vassar  v.  Camp,  i  Ker- 
nan,  441  ;  Trevor  v.  Wood,  36  N.  Y.  307  ;  Hallock  v.  Commer- 
cial Ins.  Co.  2  Dutcher,  268,  and  3  Dutcher,  645  ;  Tayloe  v. 
Merchants'  Ins.  Co.,  9  How.  390. 

But  this  case  does  not  require  a  consideration  of  the  general 
question  ;  for,  in  any  view,  the  person  making  the  offer  may 
always,  if  he  chooses,  rrjake  the  formation  of  the  contract  which 


SEC.  ic]  LEWIS   z:    BROWNING.  169 

he  proposes  dependent  upon  the  actual  communication  to  him- 
self of  the  acceptance.  Thesiger,  L.J.,  in  Household  Ins.  Co.  r. 
Grant,  4  Ex.  D.  223.  Pollock  on  Con.  (2d  ed.)  17.  Leake  on 
Con.  39,  note.  And  in  the  case  at  bar,  the  letter  written  *in  the 
plaintiff's  behalf  by  her  husband  as  her  agent  on  July  8th,  1878, 
in  California,  and  addressed  to  the  defendant  at  Boston,  appears 
to  us  clearly  to  manifest  such  an  intention.  After  proposing 
the  terms  of  an  agreement  for  a  new  lease,  he  says  :  "  If  you 
agree  to  this  plan,  and  will  telegraph  me  on  receipt  of  this,  I 
will  forward  power  of  attorney  to  Mr.  Ware,"  the  plaintiff's 
attorney  in  Boston.  "  Telegraph  me  '  yes  '  or  '  no.'  If  '  no,' 
I  will  go  on  at  once  to  Boston  with  my  wife,  and  between  us  we 
will  try  to  recover  our  lost  ground.  If  I  do  not  hear  from  you 
by  the  iSth  or  20th,  I  shall  conclude  '  no.'  "  Taking  the  whole 
letter  together,  the  offer  is  made  dependent  upon  an  actual 
communication  to  the  plaintiff  of  the  defendant's  acceptance 
on  or  before  July  20th,  and  does  not  discharge  the  old  lease, 
nor  bind  the  plaintiff  to  execute  a  new  one,  unless  the  accept- 
ance reaches  California  within  that  time.  Assuming,  therefore, 
that  the  defendant's  delivery  of  a  despatch  at  the  telegraph 
office  had  the  same  effect  as  the  mailing  of  a  letter,  he  has  no 
ground  of  exception  to  the  ruling  at  the  trial.' 
Exceptions  overruled. 

*  But  it  is  insisted  by  the  defendants'  counsel,  that  this  case  is  taken  out 
of  the  rule  by  the  concluding  clause  in  the  defendant's  letter  of  August  30th, 
which  is  in  these  words— viz.  :  "  We  have  extended  the  period  of  delivery 
to  October  30th,  as  there  will  be  at  least  ten  days'  delay  from  the  date  of 
your  letter,  before  we  can  receive  and  act  upon  your  reply.  As  soon  as 
received,  we  shall  send  among  the  farmers  and  secure  the  first  lots,  even  at 
an  extra  price,  and  where  not  threshed  out,  shall  caution  them  against 
breaking  the  barley  as  little  as  possible."  The  idea  advanced  is,  that  this 
clause,  taken  in  connection  with  that  in  the  defendants'  letter  of  August  22d, 
in  which  they  say,  "  It  being  understood  that  if  this  offer  be  accepted, 
speedy  notice  of  the  same  be  given  us,"  is  equivalent  to  an  express  condi- 
tion, that  the  defendants  would  be  bound  from  the  time  when  they  should 
receive  notice  of  the  plaintiffs'  acceptance,  and  not  before. 

But  this  position  gives,  I  think,  a  force  and  an  interpretation  to  those 
clauses  which  was  never  intended,  and  which  they  will  hardly  bear.  The 
clause  in  the  letter  of  August  22d  cannot  with  propriety  be  supposed  to 
refer  to  any  other  than  a  notice  by  mail,  through  which  the  whole  negotia- 
tion was  no  doubt  expected  to  be,  and  was  in  fact  conducted.  When  a 
notice  is  to  be  given  by  mail,  in  most  cases  if  not  in  all,  it  is  sufficient  for 
the  party  giving  notice  to  deposit  in  the  mail.  He  can  do  nothing  more  to 
insure  its  safe  delivery,  and  is  not  responsible  for  its  miscarriage.  In  re- 
gard to  the  clause  in  the  letter  of  August  30th,  it  appears  to  me  plain,  that 
it  was  not  intended  and  cannot  be  construed  as  fixing  the  time  when  the 
contract  should  become  obligatory,  but  as  expressive  merely  of  tlie  prompt- 
ness with  which  the  defendants  designed  to  act,  upon  receiving  notice  tliat 


I  JO  WHITE   V.   CORLIES   AND   TIFT.  [CHAP.  I. 


SAMUEL  P.  WHITE,   Respondent,  7'.  JOHN  W.  CORLIES 
AND  JONATHAN    N.  TIFT,   Appellants. 

In  the  Court  of  Appeals  of  New  York,  November  20,  1871. 
\^Reported  in  46  Neiv  York  Reports  467.] 

Appeal  from  judgment  of  the  General  Term  of  the  first 
judicial  district,  affirming  a  judgment  entered  upon  a  verdict 
for  plaintiff. 

The  action  was  for  an  alleged  breach  of  contract. 

The  plaintiff  was  a  builder,  with  his  place  of  business  in 
Fortieth  Street,  New  York  City. 

The  defendants  were  merchants  at  32  Dey  Street. 

In  September,  1865,  the  defendants  furnished  the  plaintiff 
with  specifications,  for  fitting  up  a  suit  of  offices  at  57  Broad- 
way, and  requested  him  to  make  an  estimate  of  the  cost  of 
doing  the  work. 

On  September  28th  the  plaintiff  left  his  estimate  with  the 
defendants,  and  they  were  to  consider  upon  it,  and  inform  the 
plaintiff  of  their  conclusions. 

On  the  same  day  the  defendants  made  a  change  in  their  speci- 
fications, and  sent  a  copy  of  the  same,  so  changed,  to  the  plain- 
tiff for  his  assent  under  his  estimate,  which  he  assented  to  by 
signing  the  same  and  returning  it  to  the  defendants. 

On  the  day  following  the  defendants'  book-keeper  wrote  the 
plaintiff  the  following  note  : 

"  New  York,  September  29. 

"  Upoti  an  agreemejit  to  finish  the  fitting  up  of  offices  57  Broad- 
way in  two  weeks  from  date,  you  can  begin  at  once. 

"  The  writer  will  call  again,  probably  between  5  and  6  this  p.m. 

"  W.  H.  R., 

"  For  J.  W.  Corlies  &  Co.,  32  Dey  Street." 

No  reply  to  this  note  was  ever  made  by  the  plaintiff  ;  and  on 
the  next  day  the  same  was  countermanded  by  a  second  note 
from  the  defendants. 

Immediately  on  receipt  of  the  note  of  September  29th,  and 
before  the  countermand  was  forwarded,  the  plaintiff  commenced 
a  performance  by  the  purchase  of  lumber  and  beginning  work 
thereon. 

their  offer  was  accepted.  Something  less  equivocal  than  this  should  be 
required  to  change  a  fixed  and  settled  rule  of  law. — Selden,  J.,  Vassar  v. 
Camp,  II  N.  Y.  441,  447-448. — Ed. 


SEC.  ic]  WHITE   r.    CORLIES   AND   TIKT.  171 

And  after  receiving  the  countermand,  the  phiintiff  brouglu 
this  action  for  damages  for  a  breach  of  contract. 

The  court  charged  the  jury  as  follows  :  "  From  the  contents 
of  this  note  which  the  plaintiff  received,  was  it  his  duty  to  go 
down  to  Dey  Street  (meaning  to  give  notice  of  assent),  before 
commencing  the  work  ? 

"  In  my  opinion  it  was  not.  He  had  a  right  to  act  upon  this 
note  and  commence  the  job,  and  that  was  a  binding  contract 
bettveen  the  parties. 

To  this  defendants  excepted. 

L.  Henry  for  appellants. 

Field  for  respondent. 

FoLGER,  J.  We  do  not  think  that  the  jury  found,  or  that  the 
testimony  shows,  that  there  was  any  agreement  between  the 
parties,  before  the  written  communication  of  the  defendants  of 
September  30th  was  received  by  the  plaintiff.  This  note  did 
not  make  an  agreement.  It  was  a  proposition,  and  must  have 
been  accepted  by  the  plaintiff  before  either  party  was  bound,  in 
contract,  to  the  other.  The  only  overt  action  which  is  claimed 
by  the  plaintiff  as  indicating  on  his  part  an  acceptance  of  the 
offer,  was  the  purchase  of  the  stuff  necessary  for  the  work,  and 
commencing  work,  as  we  understand  the  testimony,  upon  that 
stuff. 

We  understand  the  rule  to  be,  that  where  an  offer  is  made  by 
one  party  to  another  when  they  are  not  together,  the  acceptance 
of  it  by  that  other  must  be  manifested  by  some  appropriate 
act.  It  does  not  need  that  the  acceptance  shall  come  to  the 
knowledge  of  the  one  making  the  offer  before  he  shall  be  bound. 
But  though  the  manifestation  need  not  be  brought  to  his  knowl- 
edge before  he  becomes  bound,  he  is  not  bound,  if  that  mani- 
festation is  not  put  in  a  proper  way  to  be  in  the  usual  course  of 
events,  in  some  reasonable  time  communicated  to  him.  Thus  a 
letter  received  by  mail  containing  a  proposal  may  be  answered 
by  letter  by  mail,  containing  the  acceptance.  And  in  general, 
as  soon  as  the  answering  letter  is  mailed,  the  contract  is  con- 
cluded. Though  one  party  does  not  know  of  the  acceptance, 
the  manifestation  thereof  is  put  in  the  proper  way  of  reaching 
him. 

In  the  case  in  hand,  the  plaintiff  determined  to  accept.  But 
a  mental  determination  not  indicated  by  speech,  or  put  in 
course  of  indication  by  act  to  the  other  party,  is  not  an  accept- 
ance which  will  bind  the  other.  Nor  does  an  act,  which,  in 
itself,  is  no  indication  of  an  acceptance,  become  such,  because 
accompanied  by  an  unevinced  mental  determination.  Where 
the  act  uninterpreted  by  concurrent  evidence  of  the  mental  pur- 


172  BOiT  &  Mckenzie  v.  maybin.  [chap.  i. 

pose  accompanying  it,  is  as  well  referable  to  one  state  of  facts 
as  another,  it  is  no  indication  to  the  other  party  of  an  accept- 
ance, and  does  not  operate  to  hold  him  to  his  offer. 

Conceding  that  the  testimony  shows,  that  the  plaintiff  did 
resolve  to  accept  this  offer,  he  did  no  act  which  indicated  an 
acceptance  of  it  to  the  defendants.  He,  a  carpenter  and  builder, 
purchased  stuff  for  the  work.  But  it  was  stuff  as  fit  for  any 
other  like  work.  He  began  work  upon  the  stuff,  but  as  he 
would  have  done  for  any  other  like  work.  There  was  nothing 
in  his  thought  formed  but  not  uttered,  or  in  his  acts  that  indi- 
cated or  set  in  motion  an  indication  to  the  defendants  of  his 
acceptance  of  their  offer,  or  which  could  necessarily  result 
therein. 

But  the  charge  of  the  learned  judge  was  fairly  to  be  under- 
stood by  the  jury  as  laying  down  the  rule  to  them,  that  the 
plaintiff  need  not  indicate  to  the  defendants  his  acceptance  of 
their  offer  ;  and  that  the  purchase  of  stuff  and  working  on  it 
after  receiving  the  note,  made  a  binding  contract  between  the 
parties.     In  this  we  think  the  learned  judge  fell  into  error. 

The  judgment  appealed  from  must  be  reversed,  and  a  new 
trial  ordered,  with  costs  to  abide  the  event  of  the  action. 

All  concur,  but  Allen,  J.,  not  voting. 

Judgment  reversed,  and  new  trial  ordered. 


BOIT  &  Mckenzie  v.  maybin. 

In  the  Supreme  Court  of  Alabama,  January  Term,  1875. 
\^Reported  in  52  Alabaina  Reports  252.] 

Appeal  from  Circuit  Court  of  Henry. 

Tried  before  Hon.  J.  McCaleb  Wiley. 

The  opinion  states  the  case. 

J.  A.  Clendennin  for  appellant. 

W.  C.  OateSy  contra. 

Judge,  J.  The  plaintiffs  in  the  court  below  were  dealers  in 
the  article  of  "  sea- fowl  guano,"  and  their  place  of  business  was 
in  the  city  of  Savannah,  in  the  State  of  Georgia.  The  defendant 
proposed  to  their  agent  in  Alabama  to  purchase  two  tons  of  the 
guano,  and  by  the  verbal  request  of  the  defendant  the  agent 
transmitted  to  the  plaintiffs  an  order  for  the  same,  with  instruc- 
tions to  ship  it  to  the  defendant  at  Eufaula,  Ala.,  by  railroad. 
The  guano  was  shipped,  pursuant  to  the  order,  and  in  due  time 
was   received   by   the   defendant,    who   used   it  as  a   fertilizer. 


SEC.  ic]  FIRST    NATIONAL    BANK    7',    WATKINS.  173 

Subsequently,  the  agent  of  the  plaintiffs  took  the  obligation  in 
writing  of  defendant  to  the  plaintiffs,  for  the  payment  to  them 
of  the  purchase-money,  which  obligation  was  executed  in  Ala- 
bama, and  is  the  foundation  of  the  present  suit. 
,  One  defence  to  the  action  interposed  by  the  defendant  in  the 
Court  below  was,  that  the  guano  had  not  been  inspected  and 
branded  before  it  was  sold,  by  an  inspector  of  fertilizers  in  the 
State  of  Alabama,  pursuant  to  the  provisions  of  the  act  of  the 
legislature,  approved  March  ist,  1871  ;  and  that  therefore  the 
sale  was  void,  and  that  no  action  could  be  maintained  for  the 
recovery  of  the  purchase-money,  inasmuch  as  the  act  made  it  a 
penal  offence,  punishable  by  indictment,  to  sell  any  fertilizer 
within  this  State,  which  had  not  been  inspected  and  stamped 
as  required  by  the  acts. 

This  act  of  the  legislature,  under  the  facts  in  evidence,  had 
no  application  to  this  case  ;  for,  in  legal  contemplation,  the 
contract  was  made  in  the  State  of  Georgia.  When  a  proposal 
to  purchase  goods  is  made  by  letter  sent  to  another  State,  and 
is  there  assented  to,  the  contract  of  sale  is  made  in  that  State. 
Mclntyre  z>.  Parks,  3  Met.  (Mass.)  207  ;  i  Par.  on  Con.  525. 

The  delivery  of  the  guano  on  board  of  the  cars  at  Savannah 
for  shipment  to  the  defendant,  pursuant  to  his  order,  was  a  con- 
summation of  the  contract  of  sale,  and  vested  the  title,  on  such 
delivery,  in  the  purchaser,  subject  to  the  vendor's  right,  in  a 
proper  case,  of  stoppage  in  transitu. 

The  Court  erred  therefore  in  refusing  the  charge  asked, 
which  asserted  this  proposition.' 

For  the  errors  we  have  pointed  out,  the  judgment  must  be 
reversed  and  the  cause  remanded. 


FIRST   NATIONAL   BANK  v.  EUGENE   C.   WATKINS. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
September  15,  1891. 

[Reported  in  154  Massachusetts  Reports  3S5.] 

Contract,  upon  a  promissory  note  for  $500,  dated  Octo- 
ber 29th,  1887,  and  made  payable  on  March  ist,  1888,  and 
signed  by  the  defendant.  Writ  dated  December  nth,  1890. 
The  answer  set  up,  among  other  things,  that  the  defendant  gave 
the  note  for  money  borrowed  by  him  of  the  plaintiff  bank,  and 
executed  and  delivered  a  mortgage  of  personal  property  as  col- 

^  Only  so  much  of  the  opinion  is  given  as  relates  to  this  charge. — Ed. 


174  FIRST   NATIONAL   BANK   V.    WATKINS.  [cHAP.  i. 

lateral  security  therefor  ;  that  before  the  note  became  due  the 
defendant  sold  his  interest  in  said  property  to  a  third  person 
subject  to  the  mortgage,  having  theretofore  informed  the  plain- 
tiff that  he  was  about  to  sell  the  same  ;  that  the  plaintiff  assented 
to  the  sale,  and  agreed  to  collect  the  note  by  a  foreclosure  of 
the  mortgage  and  a  sale  of  the  mortgaged  property  if  the  pur- 
chaser thereof  did  not  pay  the  same  at  maturity  ;  that  the  de- 
fendant was  induced  to  sell  such  mortgaged  property  by  this 
undertaking  and  agreement  of  the  plaintiff  ;  that  the  plaintiff 
neglected  to  foreclose  the  mortgage  deed  at  maturity,  at  which 
time  the  property  was  sufficient  in  value  to  pay  the  note,  but 
extended  the  note,  and  the  property  depreciated  in  value,  and 
the  security  was  lost  ;  and  that  the  plaintiff,  having  by  its  own 
negligence  and  contrary  to  its  express  agreement  lost  such 
security  and  prevented  the  defendant  from  realizing  enough 
from  the  same  to  pay  the  note,  ought  not  to  be  allowed  to 
recover  anything  of  the  defendant  in  the  action. 

At  the  trial  in  the  Superior  Court,  before  Braley,  J.,  the  de- 
fendant offered  to  prove  that  the  note  was  made  to  one  Bene- 
dict by  the  defendant,  and  a  mortgage  of  personal  property 
given  to  secure  the  note  ;  that  Benedict  indorsed  the  note  to 
the  plaintiff  bank,  and  made  over  his  interest  in  the  mortgage 
to  it,  and  thereupon  both  became  the  property  of  the  plaintiff  ; 
that  the  defendant  afterward  sold  his  equity  in  the  mortgaged 
property  to  a  third  person,  and  the  plaintiff  bank  then  agreed 
with  the  defendant  that  it  would  look  to  the  mortgaged  prop- 
erty alone  for  payment  of  the  note  ;  that  the  plaintiff  afterward 
extended  the  time  for  the  payment  of  the  note,  without  the 
knowledge  or  request  of  the  defendant  ;  that  on  April  4th,  1890, 
the  sum  of  $178.15,  the  amount  realized  from  the  foreclosure 
and  sale  of  the  mortgaged  property,  was  paid  and  indorsed  upon 
the  note  ;  and  that  at  the  time  of  the  maturity  of  the  note  the 
mortgaged  property  was  of  more  than  sufficient  value  to  pay 
the  same. 

The  judge  ruled  that,  if  the  defendant  proved  what  was  stated 
in  his  offer  of  proof,  it  would  not  amount  to  a  defence  to  the 
action,  and  ordered  a  verdict  for  the  plaintiff,  and  reported  the 
case  for  the  determination  of  this  Court.  If  the  ruling  was 
right,  the  verdict  was  to  stand  ;  otherwise,  the  verdict  was  to 
be  set  aside,  and  a  new  trial  ordered. 

E.  M.   Wood  lor  the  defendant. 

M.   Wilcox  for  the  plaintiff. 

Knowlton,  J.  The  exceptions  were  waived  at  the  argument, 
and -we  have  to  consider  only  the  questions  presented  by  the 
report.     The  ruling  of  the  Superior  Court  was  made  on   the 


SEC.  ic]  FIRST    NATIONAL   BANK   V.    WATKINS.  175 

defendant's  offer  of  proof  in  the  opening  of  his  counsel  to  the 
jury,  and  the  argument  in  behalf  of  the  plaintiff  assumes  that 
the  agreement  referred  to  in  the  offer  was  upon  a  sufficient  con- 
sideration, and  was  enforceable  as  an  independent  contract. 
The  contention  chiefiy  relied  on  by  the  plaintiff  is,  that  sucli  an 
agreement  is  not  available  in  defence  to  a  suit  on  the  note, 
although  if  broken  it  would  furnish  a  good  foundation  for  an 
action  for  damages.  We  do  not  assent  to  this  proposition.  An 
agreement  to  "  look  to  the  mortgaged  property  alone  for  the 
payment  of  the  note"  would  be,  in  effect,  an  agreement  to  dis- 
charge the  defendant  from  all  liability  upon  it,  which,  if  made 
upon  a  valuable  consideration,  would  be  a  good  defence  to  a 
suit  for  payment  of  it  ;  although  a  new  and  independent  con- 
tract, it  would  be  unreasonable  to  permit  a  plaintiff  who  had 
made  such  an  agreement  to  collect  his  note  of  the  maker,  and 
to  compel  the  maker  to  seek  his  remedy  by  a  suit  to  recover 
back  from  the  payee  as  damages  the  sum  which  was  paid.  The 
tendency  of  the  modern  cases  is  to  allow  such  an  agreement  to 
be  shown  in  defence,  to  avoid  circuity  of  action.  Howard  v. 
Ames,  3  Met.  308,  311  ;  Hood  v.  Adams,  124  Mass.  481,  485  ; 
Wadsworth  v.  Glynn,  131  Mass.  220  ;  Hodgkins  v.  Moulton, 
100  Mass.  309,  was  decided  on  a  question  of  pleading,  and  in 
Waterhouse  v.  Kendall,  11  Cush.  128,  and  Traver  v.  Stevens, 
II  Cush.  167,  the  question  related  to  the  consideration  of  the 
note,  and  differed  materially  from  that  in  the  case  at  bar. 

The  offer,  as  stated  in  the  report,  does  not  very  clearly  show 
whether  the  agreement  referred  to  was  founded  on  a  sufficient 
consideration  ;  but  the  allegations  of  the  answer  are  full  in  this 
particular,  and  the  defendant's  counsel  asserted  in  argument, 
and  the  plaintiff's  counsel  did  not  deny,  that  the  offer  was  in 
fact  to  show  an  agreement  which  would  constitute  a  contract. 
If  there  was  an  agreement  purporting  to  be  made  in  reference 
to  the  defendant's  sale  of  the  equity  of  redemption  in  the  mort- 
gaged property  in  the  form  of  an  offer  that  the  defendant  might, 
if  he  chose,  refrain  from  paying  the  note,  and  from  taking 
measures  to  secure  payment  of  .it  out  of  the  proceeds  of  the 
mortgaged  property,  and  that  the  plaintiff  would  look  to  the 
property  alone  for  the  payment  of  it,  and  the  defendant,  relying 
upon  the  offer,  did  refrain  from  making  any  effort  to  have  the 
property  applied  to  the  payment  of  the  note  when  it  became 
due,  and  thereby  suffered  detriment,  there  would  be  a  sufficient 
consideration  for  the  agreement.  It  would  be  an  ordinary  case 
of  unilateral  contract,  growing  out  of  an  offer  of  one  party  to 
do  something  if  the  other  will  do  or  refrain  from  doing  some- 
thing else.     If  the  party  to  whom   such  an  offer  is  made  acts 


176  DAVIS   SEWING   MACHINE   CO.  V.    RICHARDS.    [CHAP.  I. 

upon  it  in  the  manner  contemplated,  either  to  the  advantage  of 
the  offerer  or  to  his  own  disadvantage,  such  action  makes  the 
contract  complete,  and  notice  of  the  acceptance  of  the  offer 
before  the  action  is  unnecessary.  Lent  v.  Padelford,  10  Mass. 
230  ;  Train  v.  Gold,  5  Pick.  380  ;  Brogden  v.  Metropolitan  Rail- 
way, 2  App.  Cas.  666,  691.  Weaver  v.  Wood,  9  Penn.  St.  220. 
Patton  V.  Hassinger,  69  Penn.  St.  311. 

In  view  of  all  the  circumstances,  we  think  the  report  should 
be  interpreted  as  presenting  the  question  whether  the  agree- 
ment offered  to  be  proved,  if  made  for  a  good  consideration, 
would  be  a  bar  to  the  present  suit.     The  entry  should  be, 

Verdict  set  aside. 


DAVIS    SEWING    MACHINE    COMPANY  v.   RICHARDS 

AND  Another. 

In  the  Supreme  Court  of  the  United  States,  December  7, 

1885. 

^Reported  in  115  United  States  Reports  524.] 

This  was  an  action  brought  in  the  Supreme  Court  of  the  Dis- 
trict of  Columbia,  upon  a  guaranty  of  the  performance  by  one 
John  W.  Poler  of  a  contract  under  seal,  dated  December  17th, 
1872,  between  him  and  the  plaintiff  corporation,  by  which  it 
was  agreed  that  all  sales  of  sewing  machines  which  the  corpora- 
tion should  make  to  him  should  be  upon  certain  terms  and  con- 
ditions, the  principal  of  which  were  that  Poler  should  use  all 
reasonable  efforts  to  introduce,  supply,  and  sell  the  machines 
of  the  corporation,  at  not  less  than  its  regular  retail  prices, 
throughout  the  District  of  Columbia  and  the  counties  of  Prince 
George  and  Montgomery  in  the  State  of  Maryland,  and  should 
pay  all  indebtedness  by  account,  note,  indorsement  or  other- 
wise, which  should  arise  from  him  to  the  corporation  under  the 
contract,  and  should  not  engage  in  the  sale  of  sewing  machines 
of  any  other  manufacture  ;  and  that  the  corporation,  during 
the  continuance  of  the  agency,  should  sell  its  machines  to  him 
at  a  certain  discount,  and  receive  payment  therefor  in  certain 
manner  ;  and  that  either  party  might  terminate  the  agency  at 
pleasure. 

The  guaranty  was  upon  the  same  paper  with  the  above  con- 
tract, and  was  as  follows  : 

"  For  value  received,  we  hereby  guarantee  to  the  Davis  Sew- 
ing Machine  Company  of  Watertown,  N.  Y.,  the  full  perform- 
ance of  the  foregoing  contract  on  the  part  of  John  W.  Poler, 


SEC.  ic]    DAVIS   SEWING   MACHINE   CO.   Z>.    RICHARDS,  1 77 

and  the  payment  by  said  John  W.  Poler  of  all  indebtedness,  by 
account,  note,  indorsement  of  notes  (including  renewals  and 
extensions)  or  otherwise,  to  the  said  Davis  Sewing  Machine 
Company,  for  property  sold  to  said  John  W.  Poler,  under  this 
contract,  to  the  amount  of  three  thousand  ($3000)  dollars. 
Dated  Washington,  D.  C,  December  17th,  1872. 

"  A.    ROTHWELL, 

"  A.  C.  Richards." 

Under  the  guaranty  were  these  words  :  "  I  consider  the  above 
sureties  entirely  responsible.    Washington,  December  i9tl;,  1872. 

"  J.  T.  Stevens." 

At  the  trial  the  above  papers,  signed  by  the  parties,  were 
given  in  evidence  by  the  plaintiff,  and  there  was  proof  of  the 
following  facts  :  On  December  17th,  1872,  at  Washington,  the 
contract  was  executed  by  Poler,  and  the  guaranty  was  signed 
by  the  defendants,  and  the  contract  and  guaranty,  after  being 
so  signed,  were  delivered  by  the  defendants  to  Poler,  and  by 
Poler  to  Stevens,  the  plaintiff's  attorney,  and  by  Stevens  after- 
ward forwarded,  with  his  recommendation  of  the  sureties,  to 
the  plaintiff  at  Watertown,  in  the  State  of  New  York,  and  the 
contract  there  executed  by  the  plaintiff.  The  plaintiff  after- 
ward delivered  goods  to  Poler  under  the  contract,  and  he  did 
not  pay  for  them.  The  defendants  had  no  notice  of  the  plain- 
tiff's execution  of  the  contract  or  acceptance  of  the  guaranty, 
and  no  notice  or  knowledge  that  the  plaintiff  had  furnished  any 
goods  to  Poler  under  the  contract  or  upon  the  faith  of  the  guar- 
anty, until  January,  1875,  when  payment  therefor  was  demanded 
by  the  plaintiff  of  the  defendants,  and  refused.  At  the  time  of 
the  signing  of  the  guaranty,  the  plaintiff  had  furnished  no 
goods  to  Poler,  and  the  negotiations  then  pending  between  the 
plaintiff  and  Poler  related  to  prospective  transactions  between 
them. 

The  Court  instructed  the  jury  as  follows  :  "It  appearing 
that,  at  the  time  the  defendants  signed  the  guaranty  on  the 
back  of  the  contract  between  the  plaintiff  and  Poler,  the  plain- 
tiff had  not  executed  the  contract  or  assented  thereto,  and  that 
the  contract  and  guaranty  related  to  prospective  dealings 
between  the  plaintiff  and  Poler,  and  that  subsequently  to  the 
signing  thereof  by  the  defendants  the  attorney  for  the  plaintiff 
approved  the  responsibility  of  the  guarantors  and  sent  the  con- 
tract to  Watertown,  N.  Y.,  to  the  plaintiff,  which  subsequently 
signed  it,  and  no  notice  having  been  given  by  the  plaintiff  to 
the  defendants  of  the  acceptance  of  such  contract  and  guaranty, 
and  that  it  intended  to  furnish  goods  thereon  and  hold  the  de- 


178  DAVIS   SEWING   MACHINE   CO.  V.    RICHARDS.   [CHAP.  I. 

fendants  responsible,  the  plaintiff  cannot  recover,  and  the  jury- 
should  find  for  the  defendants." 

A  verdict  was  returned  for  the  defendants,  and  judgment 
rendered  thereon,  which  on  exceptions  by  the  plaintiff  was 
affirmed  at  the  general  term,  and  the  plaintiff  sued  out  this 
writ  of  error,  pending  which  one  of  the  defendants  died  and  his 
executor  was  summoned  in. 

James  G.  Faytie  for  plaintiff  in  error. 

W.  A'.  Cook  and  C.  C.  Cole  for  defendants  in  error. 

Gray,  J.,  delivered  the  opinion  of  the  Court.  After  stating 
the  facts  in  the  language  above  reported,  he  continued  : 

The  decision  of  this  case  depends  upon  the  application  of  the 
rules  of  law  stated  in  the  opinion  in  the  recent  case  of  Davis  v. 
Wells,  104  U.  S.  159,  in  which  the  earlier  decisions  of  this  Court 
upon  the  subject  are  reviewed.^ 

'  The  opinion  in  Davis  v.  Wells  was  given  by  Mr.  Justice  Matthews,  and 
was  as  follows  : 

The  answer  set  up,  by  way  of  defence,  that  there  was  no  notice  to  the 
defendants  from  the  plaintiffs  of  their  acceptance  of  the  guaranty,  and  their 
intention  to  act  under  it  ;  and  no  notice  after  the  account  was  closed,  of  the 
amount  due  thereon  ;  and  no  notice  of  the  demand  of  payment  upon  Gor- 
don &  Co.,  and  of  their  failure  to  pay  within  a  reasonable  time  thereafter. 
But  there  was  no  allegation  that  by  reason  thereof  any  loss  or  damage  had 
accrued  to  the  defendants. 

On  the  trial  it  was  in  evidence,  that  this  guaranty  was  executed  by  the 
defendants  below,  and  delivered  to  Gordon  on  the  day  of  its  date,  for  de- 
livery by  him  to  Wells,  Fargo  &  Co.,  which  took  place  on  the  same  day  ; 
that  Gordon  &  Co.  were  then  indebted  to  the  plaintiffs  below  for  a  balance 
of  over  $gooo  on  their  bank  account  ;  that  their  account  continued  to  be 
overdrawn.  Wells,  Fargo  &  Co.  permitting  it  on  the  faith  of  the  guaranty, 
from  that  time  till  July  31st,  1875,  when  it  was  closed,  with  a  debit  balance 
of  $6200  ;  that  the  account  was  stated  and  payment  demanded  at  that  time 
of  Gordon  &  Co. ,  who  failed  to  make  payment  ;  that  a  formal  notice  of  the 
amount  due  and  demand  of  payment  was  made  by  Wells,  Fargo  &  Co.,  of 
the  defendants  below,  on  May  26th,  1S76,  the  day  before  the  action  was 
brought.  There  was  no  evidence  of  any  other  notice  having  been  given  in 
reference  to  it  ;  either  that  Wells,  Fargo  &  Co.  accepted  it  and  intended  to 
rely  upon  it,  or  of  the  amount  of  the  balance  due  at  or  after  the  account 
was  closed  ;  arid  no  evidence  was  offered  of  any  loss  or  damage  to  the  de- 
fendants by  reason  thereof,  or  in  consequence  of  the  delay  in  giving  the 
final  notice  of  Gordon  &  Co.'s  default. 

The  defendants'  counsel  requested  the  Court,  among  others  not  necessary 
to  refer  to,  to  give  to  the  jury  the  following  instructions,  numbered  first, 
second,  third,  and  fifth  : 

I.  If  the  jury  believes  from  the  evidence  that  the  guaranty  sued  upon  was 
delivered  by  the  defendants  to  Joseph  Gordon,  and  not  to  the  plaintiff,  but 
was  afterward  delivered  to  the  latter  by  Joseph  Gordon,  or  by  Gordon  & 
Co.,  it  became  and  was  the  duty  of  Wells,  Fargo  &  Co.  thereupon  to  notify 
the  defendants  of  the  acceptance  of  said  guaranty,  and  their  intention  to 
make  advancements  on  the  faith  of  it  ;  and,  if  they  neglected  or  failed  so  to 


SEC.   U.]    DAVIS    SEWING    MACHINE    CO.    t'.    RICHARDS.      .  1 79 

Those  rules  may  be  summed  up  as  follows  :  A  contract  of 
guaranty,  like  every  other  contract,  can  only  be  made  by  the 
mutual  assent  of  the  parties.  If  the  guaranty  is  signed  by  the 
guarantor  at  the  request  of  the  other  party,  or  if  the  latter's 
agreement  to  accept  is  contemporaneous  with  the  guaranty,  or 
if  the  receipt  from  him  of  a  valuable  consideration,  however 
small,  is  acknowledged  in  the  guaranty,  the  mutual  assent  is 
proved,  and  the  delivery  of  the  guaranty  to  him  or  for  his  use 
completes  the  contract.  But  if  the  guaranty  is  signed  by  the 
guarantor  without  any  previous  request  of  the  other  party,  and 

do,  the  defendants  are  not  liable  on  the  guaranty,  and  your  verdict  must 
be  for  the  defendants. 

2.  If  Wells,  Fargo  &  Co.  made  any  advancements  to  Gordon  &  Co.  on 
overdrafts  on  the  faith  of  said  guaranty,  it  became  and  was  the  duty  of 
plaintiff  to  notify  the  defendants,  within  a  reasonable  time  after  the  last  of 
said  advancements  of  the  amount  advanced  under  the  guaranty,  and  if  the 
plaintiff  failed  or  neglected  so  to  do,  it  cannot  recover  under  the  guaranty, 
and  your  verdict  must  be  for  the  defendants. 

3.  What  is  a  reasonable  time  in  which  notice  should  be  given  is  a  ques- 
tion of  law  for  the  Court.  W^hether  notice  was  given  is  one  of  fact  for  the 
jury.  The  Court,  therefore,  instructs  you  that  if  notice  of  the  advance- 
ments made  under  said  guaranty  was  not  given  until  after  the  lapse  of 
twelve  months  or  upward  from  the  time  the  last  advancement  was  made  to 
Gordon  &  Co.,  this  was  not  in  contemplation  of  law  a  reasonable  notice, 
and  your  verdict,  if  you  so  find  the  fact  to  be,  should  be  for  the  defendants. 

5.  Before  any  right  of  action  accrued  in  favor  of  plaintiff  under  said  guar- 
anty, it  was  incumbent  on  it  to  demand  payment  of  the  principal  debtor, 
Gordon  &  Co.,  and  on  their  refusal  to  pay,  to  notify  the  defendants.  If  the 
jury,  therefore,  find  that  no  such  demand  was  made,  and  no  notice  given 
to  the  defendants,  the  plaintiff  cannot  recover  upon  the  guaranty. 

The  Court  refused  to  give  each  of  these  instructions,  and  the  defendants 
excepted. 

The  following  instructions  were  given  by  the  Court  to  the  jury,  to  the 
giving  of  each  of  which  the  defendants  excepted  : 

1.  You  are  instructed  that  the  written  guaranty  offered  in  evidence  in  this 
case  is  an  unconditional  guaranty  by  defendants,  of  any  and  all  overdrafts, 
not  exceeding  in  amount  $10,000,  for  which  said  Gordon  &  Co.  were  in- 
debted to  the  plaintiff  at  the  date  of  the  commencement  of  this  suit.  If 
the  jury  believe  from  the  evidence  that  said  guaranty  was  by  said  defend- 
ants, or  by  any  one  authorized  by  them  to  deliver  the  same,  actually  de- 
livered to  plaintiff,  and  that  plaintiff  accepted  and  acted  on  the  same,  such 
delivery,  acceptance,  and  action  thereon  by  plaintiff  bind  the  defendants, 
and  render  the  defendants  responsible  in  the  action  for  all  overdrafts  upon 
plaintiff  made  by  Gordon  &  Co.  at  the  date  of  said  delivery  of  said  guar- 
anty, and  since,  and  which  were  unpaid  at  the  date  of  the  commencement 
of  this  suit,  not  exceeding  $10,000. 

2.  The  jury  are  instructed  that  the  written  document  under  seal,  offered 
in  evidence  in  this  case,  implies  a  consideration,  and  constitutes  an  uncon- 
ditional guaranty  of  whatever  overdraft,  if  any,  not  exceeding  $10,000, 
which  the  jury  may  find  from  the  evidence  that  Gordon  &  Co.  actual'./ 
owed  the  plaintiff  at  the  date  of  the  bringing  of  this  suit  ;  and,  further,  if 


I80  DAVIS   SEWING   MACHINE   CO.  V.    RICHARDS.   [cHAP.  I. 

in  his  absence,  for  no  consideration  moving  between  them  ex- 
cept future  advances  to  be  made  to  the  principal  debtor,  the 
guaranty  is  in  legal  effect  an  offer  or  proposal  on  the  part  of  the 
guarantor,  needing  an  acceptance  by  the  other  party  to  com- 
plete the  contract. 

The  case  at  bar  belongs  to  the  latter  class.  There  is  no  evi- 
dence of  any  request  from  the  plaintiff  corporation  to  the  guar- 
antors, or  of  any  consideration  moving  from  it  and  received  or 
acknowledged  by  them  at  the  time  of  their  signing  the  guar- 
anty. The  general  words  at  the  beginning  of  the  guaranty, 
"  value   received,"    without  stating   from  whom,    are   quite  as 

you  believe  from  the  evidence  that  an  account  was  stated  of  such  overdraft 
between  plaintiff  and  J.  Gordon  &  Co.,  then  the  plaintiff  is  entitled  to  in- 
terest on  the  amount  found  due  at  such  statement,  from  the  date  thereof, 
at  the  rate  of  ten  per  cent  per  annum. 

These  exceptions  form  the  basis  of  the  assignment  of  errors. 

The  charge  of  the  Court  first  assigned  for  error,  and  its  refusal  to  charge 
upon  the  point  as  requested  by  the  plaintiffs  in  error,  raise  the  question 
whether  the  guaranty  becomes  operative  if  the  guarantor  be  not,  within  a 
reasonable  time,  informed  by  the  guarantee  of  his  acceptance  of  it  and  in- 
tention to  act  under  it. 

It  is  claimed  in  argument  that  this  has  been  settled  in  the  negative  by  a 
series  of  well-considered  judgments  of  this  Court. 

It  becomes  necessary  to  inquire  precisely  what  has  been  thus  settled,  and 
what  rule  of  decision  is  applicable  to  the  facts  of  the  present  case. 

In  Adams  v.  Jones  (12  Pet.  207,  213),  Mr.  Justice  Story,  delivering  the 
opinion  of  the  Court,  said  :  "  And  the  question  which,  under  this  view,  is 
presented,  is  whether,  upon  a  letter  of  guaranty,  addressed  to  a  particular 
person  or  to  persons  generally,  for  a  future  credit  to  be  given  to  the  party 
in  whose  favor  the  guaranty  is  drawn,  notice  is  necessary  to  be  given  to  the 
guarantor  that  the  person  giving  the  credit  has  accepted  or  acted  upon  the 
guaranty  and  given  the  credit  on  the  faith  of  it.  We  are  all  of  the  opinion 
that  it  is  necessary  ;  and  this  is  not  now  an  open  question  in  this  Court, 
after  the  decisions  which  have  been  made  in  Russell  v.  Clarke,  7  Cranch, 
69  ;  Edmonston  v.  Drake,  5  Peters'  Rep.  624  ;  Douglass  ?/.  Reynolds, 
7  Peters'  Rep.  113  ;  Lee  v.  Dick,  10  Peters,  482  ;  and  again  recognized  at 
the  present  term  in  the  case  of  Reynolds  v.  Douglass.  It  is  in  itself  a 
reasonable  rule,  enabling  the  guarantor  to  know  the  nature  and  extent  of 
his  liability  ;  to  exercise  due  vigilance  in  guarding  himself  against  losses 
which  might  otherwise  be  unknown  to  him  ;  and  to  avail  himself  of  the 
appropriate  means  in  law  and  equity  to  compel  the  other  parties  to  dis- 
charge him  from  further  responsibility.  The  reason  applies  with  still  greater 
force  to  cases  of  a  general  letter  of  guaranty  ;  for  it  might  otherwise  be  im- 
practicable for  the  guarantor  to  know  to  whom  and  under  what  circum- 
stances the  guaranty  attached  ;  and  to  what  period  it  might  be  protracted. 
Transactions  between  the  other  parties  to  a  great  extent  might  from  time 
to  time  exist,  in  which  credits  might  be  given  and  payments  might  be 
made,  the  existence  and  due  appropriation  of  which  might  materially  affect 
his  own  rights  and  security.  If,  therefore,  the  questions  were  entirely  new, 
we  should  not  be  disposed,  to  hold  a  different  doctrine  ;  and  we  think  the 
English  decisions  are  in  entire  conformity  to  our  own." — Eu, 


SEC.  ic.f  BISHOP   V.    EATON.  l8l 

consistent  with  a  consideration  received  by  the  guarantors  from 
the  principal  debtor  only.  The  certificate  of  tlie  sufficiency  of 
the  guarantors,  written  by  the  plaintiff's  attorney  under  the 
guaranty,  bears  date  two  days  later  than  the  guaranty  itself. 
The  plaintiff's  original  contract  with  the  principal  debtor  was 
not  executed  by  the  plaintiff  until  after  that.  The  guarantors 
had  no  notice  that  their  sufficiency  had  been  approved,  or 
that  their  guaranty  had  been  accepted,  or  even  that  the  origi- 
nal contract  had  been  executed  or  assented  to  by  the  plaintiff, 
until  long  afterward,  when  payment  was  demanded  of  them  for 
goods  supplied  by  the  plaintiff  to  tlie  principal  debtor. 
Judgment  affirmed. 


CHARLES   A.  BISHOP  v.   FRANK    H.  EATON. 

In    the    Supreme   Judicial    Court    of    Massachusetts, 
June  19,  1894. 

\Reporied  m  161  Massachusetts  Reports  496.] 

Contract,  on  a  guaranty.  Writ  dated  February  2d,  1892. 
Trial  in  the  Superior  Court  without  a  jury,  before  Braley,  J., 
who  found  the  following  facts. 

The  plaintiff  in  1886  was  a  resident  of  Sycamore  in  the  State 
of  Illinois,  and  was  to  some  extent  connected  in  business  with 
Harry  H.  Eaton,  a  brother  of  the  defendant.  In  December, 
1886,  the  defendant  in  a  letter  to  the  plaintiff  said,  "  If  Harry 
needs  more  money,  let  him  have  it,  or  assist  him  to  get  it,  and 
I  will  see  that  it  is  paid." 

On  January  7th,  1887,  Harry  Eaton  gave  his  promissory  note 
for  two  hundred  dollars  to  one  Stark,  payable  in  one  year.  The 
plaintiff  signed  the  note  as  surety,  relying  on  the  letter  of  the 
defendant,  and  looked  to  the  defendant  solely  for  reimburse- 
ment, if  called  upon  to  pay  the  note.  Shortly  afterward  the 
plaintiff  wrote  to  the  defendant  a  letter  stating  that  the  note 
had  been  given  and  its  amount,  and  deposited  the  letter  in  the 
mail  at  Sycamore,  postage  prepaid,  and  properly  addressed  to 
the  defendant  at  his  home  in  Nova  Scotia.  The  letter,  accord- 
ing to  the  testimony  of  the  defendant,  was  never  received  by 
him.  At  the  maturity  of  the  note  the  time  for  its  payment  was 
extended  for  a  year,  but  whether  with  the  knowledge  or  con- 
sent of  the  defendant  was  in  dispute.  In  August,  1889,  in  an 
interview  between  them,  the  plaintiff  asked  the  defendant  to 
take  up  the  note  still  outstanding,  and  pay  it,  to  which  the  de- 


1 82  BISHOP   V.    EATON.  [cHAP.  I. 

fendant  replied  :  "  Try  to  get  Harry  to  pay  it.  If  he  don't, 
I  will.     It  shall  not  cost  you  anything." 

On  October  ist,  1891,  the  plaintiff  paid  the  note,  and  there- 
after made  no  effort  to  collect  it  from  Harry  Eaton,  the  maker. 
The  defendant  testified  that  he  had  no  notice  of  the  payment  of 
the  note  by  the  plaintiff  until  December  22d,  1891. 

The  defendant  requested  the  judge  to  rule  :  i.  The  letter  of 
the  defendant  constituted  in  law  no  more  than  an  offer  of  guar- 
anty. 2.  The  defendant  did  not  become  bound  by  a  contract 
of  guaranty  unless  it  appeared  from  a  preponderance  of  the  evi- 
dence that,  within  a  reasonable  time  after  his  offer  was  accepted 
and  acted  upon,  he  had  notice  of  such  acceptance,  and  the 
giving  of  credit  thereon.  3.  The  mere  deposit  in  the  mail  of  a 
letter  accepting  an  offer  of  guaranty  which  has  been  made  by 
mail,  such  letter  being  properly  stamped  and  addressed  to  the 
party  making  the  offer,  and  mailed  within  a  reasonable  time 
after  the  acceptance,  does  not  in  law  constitute  such  notice  to 
the  latter  as  thereupon  to  bind  him.  4.  The  defendant  did  not 
become  bound  by  a  contract  of  guaranty,  if  at  all,  unless  he 
actually  received  such  letter  of  acceptance.  5.  A  delay  for  two 
years  and  a  half  after  accepting  and  acting  upon  an  offer  of 
guaranty  to  give  notice  to  the  person  making  the  offer  is  an 
unreasonable  delay.  6.  If  for  a  year  and  a  half  after  the 
maturity  of  the  note  and  the  default  of  payment  by  the  maker, 
the  defendant  had  no  notice  of  the  default,  he  was  discharged 
from  his  contract  unless  he  subsequently  waived  his  rights 
arising  from  the  plaintiff's  laches. 

The  judge  declined  so  to  rule,  and  ruled,  as  matter  of  law 
upon  the  findings  of  fact,  that  the  plaintiff  was  entitled  to  re- 
cover, and  ordered  judgment  for  him  ;  and  the  defendant 
alleged  exceptions. 

F.  G.  Cook  for  the  defendant. 

R.   IV.  Light  for  the  plaintiff. 

Knowlton,  J.  The  defendant  requested  many  rulings  in 
regard  to  the  law  applicable  to  contracts  of  guaranty,  most  of 
which  it  becomes  necessary  to  consider.  The  language  relied 
on  was  an  offer  to  guarantee,  which  the  plaintiff  might  or  might 
not  accept.  Without  acceptance  of  it  there  was  no  contract, 
because  the  offer  was  conditional  and  there  was  no  consideration 
for  the  promise.  But  this  was  not  a  proposition  which  was  to 
become  a  contract  only  upon  the  giving  of  a  promise  for  the 
promise,  and  it  was  not  necessary  that  the  plaintiff  should 
accept  it  in  words,  or  promise  to  do  anything  before  acting 
upon  it.  It  was  an  offer  which  was  to  become  effective  as  a 
contract  upon  the  doing  of  the  act  referred  to.     It  was  an  offer 


«EC.  ic]  BISHOP  V.   EATON.  1 83 

to  be  bound  in  consideration  of  an  act  to  be  done,  and  in  sucli 
a  case  the  doing  of  the  act  'constitutes  the  acceptance  of  the 
offer  and  furnishes  the  consideration.  Ordinarily  there  is  no 
occasion  to  notify  the  offerer  of  the  acceptance  of  such  an  offer, 
for  the  doing  of  the  act  is  a  sufficient  acceptance,  and  the  prom- 
isor knows  that  he  is  bound  when  he  sees  that  action  has  been 
taken  on  the  faith  of  his  offer.  But  if  the  act  is  of  such  a  kind 
that  knowledge  of  it  will  not  quickly  come  to  the  promisor,  the 
promisee  is  bound  to  give  him  notice  of  his  acceptance  witliin  a 
reasonable  time  after  doing  that  which  constitutes  the  accept- 
ance. In  such  a  case  it  is  implied  in  the  offer  that,  to  complete 
the  contract,  notice  shall  be  given  with  due  diligence,  so  that 
the  promisor  may  know  that  a  contract  has  been  made.  But 
where  the  promise  is  in  consideration  of  an  act  to  be  done,  it 
becomes  binding  upon  the  doing  of  the  act  so  far  that  the 
promisee  cannot  be  affected  by  a  subsequent  withdrawal  of  it, 
if  within  a  reasonable  time  afterward  he  notifies  the  promisor. 
In  accordance  with  these  principles,  it  has  been  held  in  cases 
like  the  present,  where  the  guarantor  would  not  know  of  him- 
self, from  the  nature  of  the  transaction,  whether  the  offer  has 
been  accepted  or  not,  that  he  is  not  bound  without  notice  of 
the  acceptance,  seasonably  given  after  the  performance  which 
constitutes  the  consideration.  Babcock  z'.  Bryant,  12  Pick.  133  ; 
Whiting  V.  Stacy,  15  Gray,  270  ;  Schlessinger  v.  Dickinson, 
5  Allen,  47. 

In  the  present  case  the  plaintiff  seasonably  mailed  a  letter  to 
the  defendant,  informing  him  of  what  he  had  done  in  compli- 
ance with  the  defendant's  request,  but  the  defendant  testified 
that  he  never  received  it,  and  there  is  no  finding  that  it  ever 
reached  him.  The  judge  ruled,  as  matter  of  law,  that  upon  the 
facts  found,  the  plaintiff  was  entitled  to  recover,  and  the  ques- 
tion is  thus  presented  whether  the  defendant  was  bound  by  the 
acceptance  when  the  letter  was  properly  mailed,  although  he 
never  received  it. 

When  an  offer  of  guaranty  of  this  kind  is  made,  the  implica- 
tion is  that  notice  of  the  act  which  constitutes  an  acceptance  of 
it  shall  be  given  in  a  reasonable  way.  What  kind  of  a  notice  is 
required  depends  upon  the  nature  of  the  transaction,  the  situa- 
tion of  the  parties,  and  the  inferences  fairly  to  be  drawn  from 
their  previous  dealings,  if  any,  in  regard  to  the  matter.  *  If  they 
are  so  situated  that  communication  by  letter  is  naturally  to  be 
expected,  then  the  deposit  of  a  letter  in  the  mail  is  all  that  is 
necessary.  If  that  is  done  which  is  fairly  to  be  contemplated 
from  their  relations  to  the  subject-matter  and  from  their  course 
of  dealing,    the   rights  of  the  parties  are  fixed,  and  a  failure 


184  EVANS  &  CO.  V.  Mccormick.  [chap.  i. 

actually  to  receive  the  notice  will  not  affect  the  obligation  of 
the  guarantor.  > 

The  plaintiff  in  the  case  now  before  us  resided  in  Illinois,  and 
the  defendant  in  Nova  Scotia.  The  offer  was  made  by  letter, 
and  the  defendant  must  have  contemplated  that  information  in 
regard  to  the  plaintiff's  acceptance  or  rejection  of  it  would  be 
by  letter.  It  would  be  a  harsh  rule  which  would  subject  the 
plaintiff  to  the  risk  of  the  defendant's  failure  to  receive  the 
letter  giving  notice  of  his  action  on  the  faith  of  the  offer.  We 
are  of  opinion  that  the  plaintiff,  after  assisting  Harry  to  get  the 
money,  did  all  that  he  was  required  to  do  when  he  seasonably 
sent  the  defendant  the  letter  by  mail  informing  him  of  what  had 
been  done. 

How  far  such  considerations  are  applicable  to  the  case  of  an 
ordinary  contract  made  by  letter,  about  which  some  of  the  early 
decisions  are  conflicting,  we  need  not  now  consider. 

Exceptions  sustained. 


T.   G.   EVANS  &  CO.,   Appellants,  v.   C.   S.   McCORMICK. 

In  the  Supreme  Court  of  Pennsylvania,  April  i,  1895. 

[Reporled  i'n  167  Pennsylvania  State  Reports  247.] 

Argued  March  19th,  1895.  Appeal,  No.  74,  July  Term,  1894, 
by  plaintiffs,  from  order  of  C.  P.  Clinton  County,  September 
Term,  1890,  No.  167,  refusing  to  take  off  nonsuit.  Before  Ster- 
rett,  C.J.,  Green,  Williams,  McCoUum  and  Fell,  JJ.     Affirmed. 

Assumpsit  on  an  alleged  contract  of  guaranty.  Before 
Savidge,  P.J.,  of  the  eighth  judicial  district,  specially  pre- 
siding. 

At  the  trial  the  Court  entered  a  compulsory  nonsuit,  which  it 
subsequently  refused  to  take  off,  Savidge,  P.J.,  filing  the  follow- 
ing opinion  : 

"  The  cause  of  action  was  the  alleged  guaranty  of  C.  S. 
McCormick,  the  defendant. 

"  Plaintiffs  were  in  the  wholesale  crockery  and  queensware 
business  at  Pittsburg,  Pa.  Early  in  July,  1889,  they  received 
an  order  for  certain  goods  from  Mrs.  S.  M.  Bierly  of  Du  Bois, 
Pa.  Their  travelling  salesman  had  taken  the  order  from  Mrs. 
Bierly  at  Du  Bois.  Not  satisfied  of  Mrs.  Bierly's  solvency, 
before  proceeding  to  fill  the  order,  they  telegraphed  defendant 
at  Lock  Haven  as  follows  : 


SEC.  U.]  EVANS   &   CO.   f.    McCOR.MICK.  185 

"  '  Pittsburgh,  Pa.,  2-13-89. 

"  '  C.  S.  McCoRMiCK  :  Bi'erly's  purchases  amount  to  about 
$700.     Will  you  guarantee  payment  ? 

"  'T.  G.  Evans  &  Co.' 

to  which  defendant  three  days  later  wired  the  following  answer  : 

"  '  Lock  Haven,  Pa.,  2-16-89. 
"  '  T.  G.  Evans  &  Co.,  213  Market  St.,  Pgh. 
"  '  I  will  guarantee  payment  of  Bierly  bill. 

"  '  C.  S.   McCORMICK.' 

"  Just  what  led  to  this  inquiry  does  not  appear.  Upon  re- 
ceipt of  McCormick's  telegram  and  on  the  strength  of  the 
alleged  guaranty  plaintiffs  shipped  the  goods  ordered,  some  to 
Mrs.  Bierly  and  some  to  McCormick  at  Du  Bois.  All  were 
received  by  Mrs.  Bierly.  On  plaintiffs'  book  of  original  entry, 
some  of  the  goods  were  charged  to  Mrs.  Bierly  and  some  to 
McCormick.     On  their  ledger  all  were  charged  to  McCormick. 

"  Because  no  notice  had  been  given  to  McCormick  of  the 
acceptance  of  his  guaranty,  and  that  the  goods  had  been  sold 
on  the  strength  of  the  same,  plaintiffs  were  nonsuited. 

"  The  decisions  leave  no  room  for  doubt  that,  except  '  in 
cases  of  absolute  guaranty,  accepted  when  given  '  notice  of 
acceptance  is  necessary  to  fix  the  liability  of  the  guarantor. 
Gardner  t>.  Lloyd,  no  Pa.  278,  and  cases  there  cited. 

"  It  is  contended  by  counsel,  however,  that  '  if  the  guaranty 
is  made  at  the  request  of  the  guarantee  it  then  becomes  the 
answer  of  the  guarantor  to  a  proposal  made  to  him,  and  its 
delivery  to  and  for  the  use  of  the  guarantee  completes  the  com- 
munication between  them  and  constitutes  a  contract.'  As 
authority  for  this  position  Davis  2>.  Wells,  104  U.  S.  159,  and 
Sewing  Machine  Co.  v.  Richards,  115  U.  S.  524,  are  cited. 
These  cases  do  so  hold  although  the  decisions  turned  on  other 
points. 

"  Looking  to  our  own  decisions,  we  find  a  different  doctrine 
held  in  Kay  v.  Allen,  9  Pa.  320  ;  it  was  argued  by  counsel, 
*  that  a  precedent  request  by  the  creditor  to  the  party  subse- 
quently offering  the  guaranty  was  equivalent  to  notice  of  accept- 
ance.' Mr.  Justice  Bell  delivering  the  opinion  of  the  Court 
could  find  no  warrant  for  any  such  view.  In  rejecting  the 
proposition  he  reasons  as  follows  :  '  Indeed  it  is  difficult  to 
imagine  how  precedent  request  alone  can  supply  the  place  of 
subsequent  notice,  since  after  request  made  and  proffer  of  guar- 
anty, the  merchant  may  refuse  the  credit  or  advance  craved. 


i86  EVANS  &  CO.  v.  Mccormick.  [chap.  i. 

and  without  notice  the  surety  cannot  know  whether  he  has  or 
has  not.  So  far  is  this  insisted  on,  that  it  is  said  without  notice 
there  can  be  no  contract  ;  for  like  all  other  contracts,  that  of 
guaranty  requires  both  a  proposal  and  acceptance  thereof.' 
This  doctrine  was  distinctly  recognized  and  reaffirmed  in  Gard- 
ner V.  Lloyd,  supra,  decided  since  the  case  in  104  U.  S.,  Mr. 
Justice  Green  quoting  the  very  language  of  Judge  Bell. 

"  The  reasoning  of  the  Supreme  Court  of  this  State  is  con- 
vincing while  for  the  doctrine  of  the  United  States  Court  no 
reason  is  offered,  and  we  feel  bound  to  follow  the  decisions  of 
our  own  courts. 

"  In  the  case  at  bar  the  most  that  can  be  said  for  plaintiffs  is 
that  their  telegram  was  a  precedent  request  which  was  followed 
by  a  subsequent  offer  of  guaranty  from  the  defendant.  De- 
fendant was  entitled  to  notice  before  he  could  be  held  on  his 
guaranty.  To  my  mind  plaintiffs  have  not  made  a  better  if 
indeed  so  good  a  showing  as  did  Coe  in  his  case  against  Buehler, 
reported  in  no  Pa.  366.  There  the  guarantor  signed  the  guar- 
anty at  the  instance  of  the  agent  of  the  guarantee.  The  con- 
tract guaranteed,  though  executed  by  the  debtor,  had  not  yet 
been  signed  by  the  guarantee.  It  was  executed  by  him  soon 
afterward,  but  no  notice  thereof  was  given  to  the  guarantor. 
The  Supreme  Court  held  that  absence  of  notice  of  acceptance 
was  fatal  and  sustained  a  judgment  of  nonsuit.  This  is  in  har- 
mony with  the  unbroken  line  of  decisions  preceding  it  and  is 
conclusive  of  the  question  under  consideration. 

"  It  is  urged  that  there  is  testimony  from  which  the  jury 
could  find  that  defendant  was  interested  in  Mrs.  Bierly's  pur- 
chase— that  the  goods  were,  in  fact,  bought  for  him.  We  do 
not  think  so.  Joseph  Bensinger,  the  tenant  of  the  hotel  under 
McCormick  and  Seener,  says  he  purchased  from  McCormick  a 
one  half  interest  in  these  goods,  on  December  13th,  1889.  This 
was  ten  months  after  the  sale  to  Mrs.  Bierly.  It  was  not  shown 
how  McCormick  came  by  this  one  half  interest  or  that  he  knew 
where  the  goods  came  from.  The  fair  and  natural  presumption 
would  be  that  he  bought  from  Mrs.  Bierly.  There  is  nothing 
in  plaintiff's  testimony  to  show  that  McCormick  ever,  prior  to 
the  bringing  of  this  suit,  had  knowledge  that  Evans  &  Company 
had  sold  the  goods  in  question  or  any  other  goods  to  Mrs. 
Bierly.  Plaintiffs  could  have  shown  how  this  was  and  it  was 
their  duty  to  do  so. 

"  They  seek,  to  recover  from  McCormick,  not  as  the  original 
debtor,  but  as  surety. 

"  In  all  cases,  when  a  plaintiff  seeks  to  make  one  man  liable 
for  the  debt  of  another   the   case  must  be  plainly  made  out. 


SEC.  id.]  BOULTON  r.   JONES  AND  ANOTHER.         187 

Every  ambiguity  in  the  evidence  weighs  in  favor  of  the  defend- 
ant.     Kellogg  2'.  Stockton  &  Fuller,  29  Pa.  460. 

"  The  rule  is  discharged." 

Errors  assigned  were  (i)  entry  of  nonsuit  ;  (2)  refusal  to  take 
it  off. 

JV.  C.  Kress  for  appellants. 

Cline  G.  Furst  for  appellee. 

Per  Curiam,  April  ist,  1895. 

The  only  error  properly  assigned  is  the  refusal  of  the  Court 
below  to  take  off  the  judgment  of  nonsuit. 

For  reasons  given  by  the  learned  president  of  the  eighth 
judicial  district,  who  specially  presided  at  the  hearing,  we  are 
satisfied  that  the  rule  to  take  off  the  compulsory  nonsuit  was 
rightly  discharged. 

The  judgment  is  affirmed  on  his  opinion. 


(^)  By  whom  offer  must  be  accepted. 

BOULTON  V.  JONES  and  Another. 

In  the  Exchequer,   November  25,    1857. 

[Reported  in  2  Hurlstotie  &^  Norman  564.] 

Action  for  goods  sold.     Plea. — Never  indebted. 

At  the  trial  before  the  Assessor  of  the  Court  of  Passage  at 
Liverpool,  it  appeared  that  the  plaintiff  had  been  foreman  and 
manager  to  one  Brocklehurst,  a  pipe  hose  manufacturer,  with 
whom  the  defendants  had  been  in  the  habit  of  dealing,  and  with 
whom  they  had  a  running  account.  On  the  morning  of  Jan- 
uary 13th,  1857,  the  plaintiff  bought  Brocklehurst's  stock,  fix- 
tures, and  business,  and  paid  for  them.  In  the  afternoon  of 
the  same  day,  the  defendant's  servant  brought  a  written  order, 
addressed  to  Brocklehurst,  for  three  50-feet  leather  hose  2^  in. 
The  goods  were  supplied  by  the  plaintiff.  The  plaintiff's  book- 
keeper struck  out  the  name  of  Brocklehurst  and  inserted  the 
name  of  the  plaintiff  in  the  order.  An  invoice  was  afterward 
sent  in  by  the  plaintiff  to  the  defendants,  who  said  they  knew 
nothing  of  him.  Upon  these  facts,  the  jury,  under  direction  of 
the  Assessor,  found  a  verdict  for  the  plaintiff,  and  leave  was 
reserved  to  the  defendants  to  move  to  enter  a  verdict  for  them, 

Mellish  having  obtained  a  rule  nisi  accordingly, 

M' Oubrey  now  showed  cause. 

Mellish  in  support  of  the  rule. 


1 88  BOULTON   V.    TONES   AND   ANOTHER.  [cHAP.  I. 

Pollock,  C.B.  The  point  raised  is,  whether  the  facts  proved 
did  not  show  an  intention  on  the  part  of  the  defendants  to  deal 
with  Brocklehurst.  The  plaintiff,  who  succeeded  Brocklehurst 
in  business,  executed  the  order  without  any  intimation  of  the 
change  that  had  taken  place,  and  brought  this  action  to  recover 
the  price  of  the  goods  supplied.  It  is  a  rule  of  law,  that  if  a 
person  intends  to  contract  with  A.,  B.  cannot  give  himself  any- 
right  under  it.  Here  the  order  in  writing  was  given  to  Brockle- 
hurst. Possibly  Brocklehurst  might  have  adopted  the  act  of 
the  plaintiff  in  supplying  the  goods,  and  maintained  an  action 
for  their  price.  But  since  the  plaintiff  has  chosen  to  sue,  the 
only  course  the  defendants  could  take  was  to  plead  that  there 
was  no  contract  with  him. 

Martin,  B.  I  am  of  the  same  opinion.  This  is  not  a  case  of 
principal  and  agent.  If  there  was  any  contract  at  all,  it  was 
not  with  the  plaintiff.  If  a  man  goes  to  a  shop  and  makes  a 
contract,  intending  it  to  be  with  one  particular  person,  no  other 
person  can  convert  that  into  a  contract  with  him. 

Bramwell,  B.  The  admitted  facts  are,  that  the  defendants 
sent  to  a  shop  an  order  for  goods,  supposing  they  were  dealing 
with  Brocklehurst.  The  plaintiff,  who  supplied  the  goods,  did 
not  undeceive  them.  If  the  plaintiff  were  now  at  liberty  to  sue 
the  defendants,  they  would  be  deprived  of  their  right  of  set-off 
as  against  Brocklehurst.  When  a  contract  is  made,  in  which 
the  personality  of  the  contracting  party  is  or  may  be  of  impor- 
tance, as  a  contract  with  a  man  to  write  a  book,  or  the  like,  or 
where  there  might  be  a  set-off,  no  other  person  can  interpose 
and  adopt  the  contract.  As  to  the  difficulty  that  the  defendants 
need  not  pay  anybody,  I  do  not  see  why  they  should,  unless 
they  have  made  a  contract  either  express  or  implied.  I  decide 
the  case  on  the  ground  that  the  defendants  did  not  know  that 
the  plaintiff  was  the  person  who  supplied  the  goods,  and  that 
allowing  the  plaintiff  to  treat  the  contract  as  made  with  him 
would  be  a  prejudice  to  the  defendants. 

Channell,  B.  In  order  to  entitle  the  plaintiff  to  recover  he 
must  show  that  there  was  a  contract  with  himself.  The  order 
vfSLS  given  to  the  plaintiff's  predecessor  in  business.  The  plain- 
tiff executes  it  without  notifying  to  the  defendants  who  it  was 
who  executed  the  order.  When  the  invoice  was  delivered  in 
the  name  of  the  plaintiff,  it  may  be  that  the  defendants  were 
not  in  a  situation  to  return  the  goods. 

Rule  absolute. 


SEC.  id.]  BOSTON   ICE   CO.   1'.    POTTER.  1 89 


BOSTON    ICE    COMPANY  v.   EDWARD    POTTER. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  June  28, 

1877. 

\Reported  in  123  Massachusetts  Reports  28.] 

Contract  on  an  account  annexed,  for  ice  sold  and  delivered 
between  April  ist,  1874,  and  April  ist,  1875.  Answer,  a  gen- 
eral denial. 

At  the  trial  in  the  Superior  Court,  before  Wilkinson,  J.,  with- 
out a  jury,  the  plaintiff  offered  evidence  tending  to  show  the 
delivery  of  the  ice  and  its  acceptance  and  use  by  the  defendant 
from  April  ist,  1874,  to  April  ist,  1875,  and  that  the  price 
claimed  in  the  declaration  was  the  market  price.  It  appeared 
that  the  ice  was  delivered  and  used  at  the  defendant's  residence 
in  Boston,  and  the  amount  left  daily  was  regulated  by  the 
orders  received  there  from  the  defendant's  servants  ;  that  the 
defendant,  in  1873,  was  supplied  with  ice  by  the  plaintiff,  but, 
on  account  of  some  dissatisfaction  with  the  manner  of  supply, 
terminated  his  contract  with  it  ;  that  the  defendant  then  made 
a  contract  with  the  Citizens'  Ice  Company  to  furnish  him  with 
ice  ;  that  some  time  before  April,  1874,  the  Citizens'  Ice  Com- 
pany sold  its  business  to  the  plaintiff,  with  the  privilege  of  sup- 
plying ice  to  its  customers.  There  was  some  evidence  tending 
to  show  that  the  plaintiff  gave  notice  of  this  change  of  business 
to  the  defendant,  and  informed  him  of  its  intended  supply  of  ice 
to  him  ;  but  this  was  contradicted  on  the  part  of  the  defendant. 

The  judge  found  that  the  defendant  received  no  notice  from 
the  plaintiff  until  after  all  the  ice  had  been  delivered  by  it,  and 
that  there  Avas  no  contract  of  sale  between  the  parties  to  this 
action  except  what  was  to  be  implied  from  the  delivery  of  the 
ice  by  the  plaintiff  to  the  defendant  and  its  use  by  him  ;  and 
ruled  that  the  defendant  had  a  right  to  assume  that  the  ice  in 
question  was  delivered  by  the  Citizens'  Ice  Company,  and  that 
the  plaintiff  could  not  maintain  this  action.  The  plaintiff 
alleged  exceptions. 

J.  P.  Farley.,  Jr.,  for  the  plaintiff. 

E.  C.  Buttipus  QT'  E.  M.  Johnson  for  the  defendant. 

Endicott,  J.  To  entitle  the  plaintiff  to  recover,  it  must  show 
some  contract  with  the  defendant.  There  was  no  express  con- 
tract, and  upon  the  facts  stated  no  contract  is  to  be  implied. 
The  defendant  had  taken  ice  from  the  plaintiff  in  1873,  but,  on 
account  of  some  dissatisfaction  with  the  manner  of  supply,  he 
terminated  his  contract,  and  made  a  contract  for  his  supply  with 


ipo  BOSTON   ICE   CO,   V.    POTTER.  [CHAP.  I. 

the  Citizens'  Ice  Company.  The  plaintiff  afterward  delivered 
ice  to  the  defendant  for  one  year  without  notifying  the  defend- 
ant, as  the  presiding  judge  has  found,  that  it  had  bought  out 
the  business  of  the  Citizens'  Ice  Company,  until  after  the  de- 
livery and  consumption  of  the  ice. 

The  presiding  judge  has  decided  that  the  defendant  had  a 
right  to  assume  that  the  ice  in  question  was  delivered  by  the 
Citizens'  Ice  Company,  and  has  thereby  necessarily  found  that 
the  defendant's  contract  with  that  company  covered  the  time 
of  the  delivery  of  the  ice. 

There  was  no  privity  of  contract  established  between  the 
plaintiff  and  defendant,  and  without  such  privity  the  possession 
and  use  of  the  property  will  not  support  an  implied  assu??ipsit. 
Hills  V.  Snell,  104  Mass.  173,  177.  And  no  presumption  of 
assent  can  be  implied  from  the  reception  and  use  of  the  ice, 
because  the  defendant  had  no  knowledge  that  it  was  furnished 
by  the  plaintiff,  but  supposed  that  he  received  it  under  the  con- 
tract made  with  the  Citizens'  Ice  Company.  Of  this  change  he 
was  entitled  to  be  informed. 

A  party  has  a  right  to  select  and  determine  with  whom  he 
will  contract,  and  cannot  have  another  person  thrust  upon  him 
without  his  consent.  It  may  be  of  importance  to  him  who  per- 
forms the  contract,  as  when  he  contracts  with  another  to  paint 
a  picture,  or  write  a  book,  or  furnish  articles  of  a  particular 
kind,  or  when  he  relies  upon  the  character  or  qualities  of  an 
individual,  or  has,  as  in  this  case,  reasons  why  he  does  not  wish 
to  deal  with  a  particular  party.  In  all  these  cases,  as  he  may 
contract  with  whom  he  pleases,  the  sufficiency  of  his  reasons  for 
so  doing  cannot  be  inquired  into.  If  the  defendant,  before 
receiving  the  ice,  or  during  its  delivery,  had  received  notice  of 
the  change,  and  that  the  Citizens'  Ice  Company  could  no  longer 
perform  its  contract  with  him,  it  would  then  have  been  his  un- 
doubted right  to  have  rescinded  the  contract  and  to  decline  to 
have  it  executed  by  the  plaintiff.  But  this  he  was  unable  to  do, 
because  the  plaintiff  failed  to  inform  him  of  that  which  he  had 
a  right  to  know.  Orcutt  v.  Nelson,  i  Gray,  536,  542  ;  Winches- 
ter V.  Howard,  97  Mass.  303  ;  Hardman  v.  Booth,  i  H.  &  C. 
803  ;  Humble  v.  Hunter,  12  Q.  B.  310  ;  Robson  v.  Drummond, 
2  B.  &  Ad.  303.  If  he  had  received  notice  and  continued  to 
take  the  ice  as  delivered,  a  contract  would  be  implied.  Mudge  v. 
Oliver,  i  Allen,  74  ;  Orcutt  v.  Nelson,  tibi  supra  j  Mitchell  v. 
Lapage,  Holt  N.  P.  253. 

There  are  two  English  cases  very  similar  to  the  case  at  bar. 
In  Schmaling  v.  Thomlinson,  6  Taunt.  147,  a  firm  was  employed 
by  the  defendants  to  transport  goods  to  a  foreign  market,  and 


SEC.  I^.]  BOSTON    ICE   CO.   7'.    TOTTER.  I9I 

transferred  the  entire  employment  to  the  plaintiff,  who  per- 
formed it  without  the  privity  of  the  defendants,  and  it  was  held 
that  he  could  not  recover  compensation  for  his  services  from 
the  defendants. 

The  case  of  Boulton  ?>.  Jones,  2  H.  &  N.  564,  was  cited  by 
both  parties  at  the  argument.  There  the  defendant,  who  had 
been  in  the  habit  of  dealing  with  one  Brocklehurst,  sent  a  writ- 
ten order  to  him  for  goods.  The  plaintiff,  who  had  on  the  same 
day  bought  out  the  business  of  Brocklehurst,  executed  the  order 
without  giving  the  defendant  notice  that  the  goods  were  sup- 
plied by  him  and  not  by  Brocklehurst.  And  it  was  held  that 
the  plaintiff  could  not  maintain  an  action  for  the  price  of  the 
goods  against  the  defendant.  It  is  said  in  that  case  that  the 
defendant  had  a  right  of  set-off  against  Brocklehurst,  with 
whom  he  had  a  running  account,  and  that  is  alluded  to  in  the 
opinion  of  Baron  Bramwell,  though  the  other  judges  do  not 
mention  it. 

The  fact  that  a  defendant  in  a  particular  case  has  a  claim  in 
set-off  against  the  original  contracting  party  shows  clearly  the 
injustice  of  forcing  another  person  upon  him  to  execute  the  con- 
tract without  his  consent,  against  whom  his  set-off  would  not 
be  available.  But  the  actual  existence  of  the  claim  in  set-off 
cannot  be  a  test  to  determine  that  there  is  no  implied  assumpsit 
or  privity  between  the  parties.  Nor  can  the  non-existence  of  a 
set-off  raise  an  implied  assumpsit.  If  there  is  such  a  set-off,  it  is 
sufficient  to  state  that,  as  a  reason  why  the  defendant  should 
prevail  ;  but  it  by  no  means  follows  that  because  it  does  not 
exist  the  plaintiff  can  maintain  his  action.  The  right  to  main- 
tain an  action  can  never  depend  upon  whether  the  defendant 
has  or  has  not  a  defence  to  it. 

The  implied  assumpsit  arises  upon  the  dealings  between  the 
parties  to  the  action,  and  cannot  arise  upon  the  dealings  between 
the  defendant  and  the  original  contractor,  to  which  the  plaintiff 
was  not  a  party.  At  the  same  time,  the  fact  that  the  right  of 
set-off  against  the  original  contractor  could  not,  under  any  cir- 
cumstances, be  availed  of  in  an  action  brought  upon  the  con- 
tract by  the  person  to  whom  it  was  transferred  and  who  exe- 
cuted it,  shows  that  there  is  no  privity  between  the  parties  in 
regard  to  the  subject-matter  of  this  action. 

It  is,  therefore,  immaterial  that  the  defendant  had  no  claim 
in  set-off  against  the  Citizens'  Ice  Company. 

We  are  not  called  upon  to  determine  what  other  remedy  the 
plaintiff  has,  or  what  would  be  the  rights  of  the  parties  if  the 
ice  were  now  in  existence. 

Exceptions  overruled. 


192  LINCOLN   V.    ERIE   PRESERVING   CO.  [CHAP.  I. 


LUTHER  J.  B.  LINCOLN  v.   ERIE    PRESERVING 
COMPANY. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
January  3,  1882. 

[Reported  in  132  Massachusetts  Reports  129.] 

Contract  for  the  non-delivery  of  3000  cases  of  corn.  An- 
swer, the  Statute  of  Frauds.  Trial  in  the  Superior  Court,  with- 
out a  jury,  before  Bacon,  J.,  who  allowed  a  bill  of  exceptions  in 
substance  as  follows  : 

The  defendant  is  a  corporation  established  in  New  York, 
engaged  in  packing  fruits  and  vegetables.  The  plaintiff  is  a 
broker  and  dealer  having  his  office  in  Boston.  He  had  acted  as 
broker  for  the  defendant,  and  had  also  dealt  with  it  in  his  own 
name. 

On  September  26th,  1879,  the  plaintiff  signed  and  sent  from 
Boston  to  the  defendant  the  following  telegram  :  "  Telegraph 
how  much  corn  you  will  sell,  with  lowest  cash  price,  Buffalo." 
The  defendant  signed  and  sent  from  New  York,  on  the  same 
day,  the  following  telegram  :  "  Three  thousand  cases,  $1.05, 
open  one  week." 

The  plaintiff  also  signed  and  sent  to  the  defendant,  after  the 
receipt  of  the  above  message,  on  the  same  day,  the  following 
telegram  :  "  Sold  corn,  will  see  you  to-morrow."  There  was 
no  other  memorandum  in  writing. 

The  plaintiff  went  to  New  York  on  September  27th,  and  had 
an  interview  with  the  defendant's  treasurer  and  manager.  The 
plaintiff  offered  to  prove  that  at  such  interview  he  verbally 
accepted  the  offer  contained  in  the  telegrams  ;  that  the  defend- 
ant promised  to  ship  the  goods  to  him  ;  and  that  the  last  tele- 
gram referred  to  a  resale  by  himself  of  the  same  corn  to  one 
Hooper. 

The  judge  ruled  that  the  plaintiff  could  not  maintain  an  action 
upon  the  contract,  because  it  was  a  contract  for  the  sale  of  mer- 
chandise for  the  price  of  more  than  $50,  and  there  was  no 
acceptance  of  any  part  of  the  goods,  or  giving  anything  in 
earnest  to  bind  the  bargain,  or  part  payment,  and  no  sufficient 
note  or  memorandum  in  writing  of  the  bargain  made  and  signed 
by  the  defendant,  or  by  any  one  thereunto  authorized,  because 
the  name  of  the  purchaser  was  not  disclosed  in  the  writings  ; 
and  that  no  parol  testimony  could  supplement  the  telegrams  so 
as  to  bind  the  defendant  to  its  offer  ;  and  found  for  the  defend- 
ant.    The  plaintiff  alleged  exceptions. 


SEC.  I^-.]  C.  &   G.   E.    R.    R.   CO.   V.   DANE  ct  al.  193 

A.  Hememoay  for  the  plaintiff. 

W.  B.  French  for  the  defendant. 

Allen,  J.  The  telegrams  do  not  contain  any  offer  by  the 
defendant  to  sell  to  the  plaintiff.  The  plaintiff  was  a  broker, 
and  had  acted  as  a  broker  for  the  defendant,  and  also  had  deal- 
ings with  it  on  his  own  account.  Construing  the  first  two  tele- 
grams together,  the  defendant  says  to  the  plaintiff  that  it  will 
sell  a  certain  quantity  of  corn,  on  certain  terms,  and  within  a 
certain  time  ;  but  it  does  not  say  that  it  will  sell  to  the  plain- 
tiff. It  says  in  effect  that  it  will  hold  the  corn  for  a  week,  for 
the  plaintiff  to  find  a  purchaser.  The  plaintiff's  reply  confirms 
this  construction,  for  he  does  not  say  that  he  will  take  the  corn, 
but  that  he  has  sold  it,  and  will  see  the  defendant  the  next  day. 
Smith  V.  Gowdy,  8  Allen,  566  ;  Champion  v.  Plummer,  i  N.  R. 
252. 

As  there  is  no  written  evidence  of  any  bargain  or  offer  to  sell 
the  corn  to  the  plaintiff,  evidence  of  a  subsequent  oral  promise 
by  the  defendant,  or  acceptance  by  the  plaintiff,  was  properly 
excluded. 

Exceptions  overruled. 


(e)  Necessity  of  certainty  of  terms. 

THE    CHICAGO  &  GREAT    EASTERN    RAILWAY   COM- 
PANY, Appellant,  v.  FRANCIS    B.  DANE 
AND  Others,  Respondents. 

In  the  Court  of  Appeals  of  New  York,  December  20,  1870. 

l^Reported  in  43  New  York  Reports  240.] 

This  is  an  appeal  from  a  judgment  of  the  General  Term  of 
the  Supreme  Court  in  the  first  judicial  district,  affirming  a  judg- 
ment for  the  defendant  entered  upon  the  report  of  a  referee. 

This  action  was  brought  to  recover  damages  on  an  alleged 
contract  of  the  defendant  to  carry  and  transport  a  quantity  of 
railroad  iron  from  New  York  to  Chicago  for  the  plaintiffs.  The 
only  evidence  of  the  contract  were  the  letters  quoted  in  the 
opinion  of  the  Court.  The  defendant  insisted  that  the  agree- 
ment was  invalid  for  want  of  the  proper  United  States  internal 
revenue  stamp  affixed  at  the  time  it  was  made.  But  the  referee 
overruled  the  objection,  holding  that  it  was  sufficient  under 
§  173  of  the  revenue  act  of  June  30th,  1864,  to  stamp  the  instru- 
ment on  its  production  in  court.  This  point  was  not  passed  on 
in  this  court. 


194  C.   &   G.    E.    R.    R.   CO.   V.   DANE   et  al.  [CHAP.  I. 

Titus  &•  Westervelt  for  the  appellant. 

H.   W.  Johnso7i  for  the  respondents. 

Grover,  J.  Whether  the  letter  of  the  defendants  to  plaintiff, 
and  the  answer  of  plaintiff  thereto  (leaving  the  question  of  rev- 
enue stamps  out  of  view),  proved  a  legal  contract  for  the  trans- 
portation of  iron  by  the  defendants  for  the  plaintiff  from  New 
York  to  Chicago  upon  the  terms  therein  specified,  depends  upon 
the  question  whether  the  plaintiff  became  thereby  bound  to  fur- 
nish any  iron  to  the  defendants  for  such  transportation,  as  there 
was  no  pretence  of  any  consideration  for  the  promise  of  the 
defendants  to  transport  the  iron,  except  the  mutual  promise  of 
the  plaintiff  to  furnish  it  for  that  purpose,  and  to  pay  the  speci- 
fied price  for  the  service.  Unless,  therefore,  there  was  a  valid 
undertaking  by  the  plaintiff  so  to  furnish  the  iron,  the  promise 
of  the  defendants  was  a  mere  nude  pact,  for  the  breach  of  which 
no  action  can  be  maintained.  The  material  part  of  the  defend- 
ants' letter  affecting  this  question  is  as  follows  :  "  We  hereby 
agree  to  receive  in  this  port  (New  York),  either  from  yard  or 
vessel,  and  transport  to  Chicago,  by  canal  and  rail  or  the  lakes, 
for  and  on  account  of  the  Chicago  &  Great  Eastern  Railway 
Company,  not  exceeding  6000  tons  gross  (2240  pounds)  in  and 
during  the  months  of  April,  May,  June,  July,  and  August,  1864, 
upon  the  terms  and  for  the  price  hereinafter  specified."  This 
letter  was  forwarded  by  the  defendants  to  the  plaintiff  April  15th, 
1864.  On  April  i6th  the  plaintiff  answered  this  letter,  the  mate- 
rial part  of  which  was  as  follows  :  "  In  behalf  of  this  company 
I  assent  to  your  agreement,  and  will  be  bound  by  its  terms." 
We  have  seen  that  the  inquiry  is,  whether  this  bound  the  plain- 
tiff to  furnish  any  iron  for  transportation.  It  is  manifest  that 
the  word  "  agree"  in  the  letter  of  the  defendants  was  used  as 
synonymous  with  the  word  "  offer,"  and  that  the  letter  was  a 
mere  proposition  to  the  plaintiff  for  a  contract  to  transport  for 
it  any  quantity  of  iron  upon  the  terms  specified,  not  exceeding 
6000  tons,  and  that  it  was  so  understood  by  the  plaintiff.  The 
plaintiff  was  at  liberty  to  accept  this  proposition  for  any  speci- 
fied quantity  not  beyond  that  limited  ;  and  had  it  done  so,  a 
contract  mutually  obligatory  would  have  resulted  therefrom,  for 
the  breach  of  which  by  either  party  the  other  could  have  main- 
tained an  action  for  the  recovery  of  the  damages  thereby  sus- 
tained. This  mutual  obligation  of  the  parties  to  perform  the 
contract  would  have  constituted  a  consideration  for  the  promise 
of  each.  But  the  plaintiff  did  not  so  accept.  Upon  the  receipt 
of  the  defendants'  offer  to  transport  not  to  exceed  6000  tons 
upon  the  terms  specified,  it  merely  accepted  such  offer,  and 
agreed  to  be  bound  by  its  terms.     This  amounted  to  nothing- 


SEC.  l^.]  C.   &   G.   E.    R.    R.   CO.   V.   DANE   it  al.  I95 

more  than  the  acceptance  of  an  option  by  the  plaintiff  for  the 
transportation  of  such  quantity  of  iron  by  the  defendants  as  it 
chose  ;  and  had  there  been  a  consideration  given  to  the  defend- 
ants for  such  option,  the  defendants  would  have  been  bound  to 
transport  for  the  plaintiff  such  iron  as  it  required  within  the 
time  and  quantity  specified,  the  plaintiff  having  its  election  not 
to  require  the  transportation  of  any.  But  there  was  no  consid- 
eration received  by  the  defendants  for  giving  any  such  option 
to  the  plaintiff.  There  being  no  consideration  for  the  promise 
of  the  defendants,  except  this  acceptance  by  the  plaintiff,  and 
that  not  binding  it  to  furnish  any  iron  for  transportation  unless 
it  chose,  it  follows  that  there  was  no  consideration  for  any 
promise  of  the  defendants,  and  that  the  breach  of  such  promise 
furnishes  no  foundation  for  an  action.  The  counsel  for  the  de- 
fendants insists  that  the  contract  may  be  upheld  for  the  reason 
that  at  the  time  the  letters  were  written  the  defendants  were 
engaged  in  transporting  iron  for  the  plaintiff.  But  this  had  no 
connection  with  the  letters  any  more  than  if  the  defendants  were 
at  the  time  employed  in  any  other  service  for  the  plaintiff.  Nor 
does  the  fact  that  the  defendants,  after  the  letters  were  written, 
transported  iron  for  the  plaintiff  at  all  aid  in  upholding  the  con- 
tract. This  did  not  oblige  the  plaintiff  to  furnish  any  additional 
quantity,  and  consequently  constituted  no  consideration  for  a 
promise  to  transport  any  such.  The  counsel  for  the  appellafit 
further  insists  that  the  letter  of  defendant  was  a  continuing 
offer,  and  that  the  request  of  the  plaintiff,  in  August,  to  receive 
and  transport  a  specified  quantity  of  iron  was  an  acceptance  of 
such  offer,  and  that  the  premises  then  became  mutually  obliga- 
tory, if  not  so  before.  This  position  cannot  be  maintained. 
Upon  receipt  of  the  defendants'  letter,  the  plaintiff  was  bound 
to  accept  in  a  reasonable  time  and  give  notice  thereof,  or  the 
defendant  was  no  longer  bound  by  the  offer.  The  judgment 
appealed  from  must  be  affirmed  with  costs. 

All  the  judges  concurring  except  Allen,  J.,  who,  having  been 
of  counsel,  did  not  sit. 

Judgment  affirmed. 


196  GREAT   NORTHERN   RY.   CO.   V.  WITHAM.       [CHAP.  I. 


THE  GREAT  NORTHERN  RAILWAY  COMPANY  v. 

WITHAM. 

In  the  Common  Pleas,  November  6,  1873. 
[Reported  in  Law  Reports  9  Conmion  Pleas  16.] 

The  first  count  of  the  declaration  stated  that  it  was  agreed 
by  and  between  the  plaintiffs  and  the  defendant  that  the  de- 
fendant should  supply  and  sell  and  deliver  to  the  plaintiffs  at 
Doncaster  Station,  and  that  the  plaintiffs  should  buy  and  accept 
of  him,  any  quantity  they  might  require  and  order  of  him  during 
a  period  ending  on  October  31st,  1872,  of  certain  descriptions  of 
iron,  at  certain  prices  agreed  on  between  them  ;  that  all  things 
were  done  and  happened  and  existed,  and  times  had  elapsed,  to 
entitle  the  plaintiffs  to  a  performance  by  the  defendant  of  his 
agreement  and  to  maintain  the  action  for  the  breach  by  him  of 
the  same  as  thereinafter  alleged  ;  yet  that  the  defendant  did 
not  nor  would  supply  and  sell  and  deliver  to  the  plaintiffs  at 
Doncaster  Station  or  elsewhere  divers  quantities  of  the  said 
descriptions  of  iron,  which  the  plaintiffs  required  and  ordered 
of  him  during  the  said  period,  whereby  the  plaintiffs  were 
obliged  to  procure  quantities  of  iron  from  other  persons  at 
higher  prices  than  those  to  be  paid  by  them  as  aforesaid,  and 
were  otherwise  injured. 

Second  count,  that  it  was  agreed  by  and  between  the  plain- 
tiffs and  the  defendant  that  the  defendant  should  supply  and 
sell  and  deliver  to  the  plaintiffs  at  Doncaster  Station,  and  that 
the  plaintiffs  should  buy  and  accept  of  him,  any  quantity  they 
might  order  of  him  for  half  the  requirements  of  the  plaintiffs 
during  the  said  period  ending  on  October  31st,  1872,  of  certain 
descriptions  of  iron,  at  certain  prices  agreed  on  between  them  ; 
that  all  things  were  done,  etc.,  yet  the  defendant  did  not  nor 
would  supply  and  sell  and  deliver  to  the  plaintiffs,  as  agreed 
on  as  aforesaid,  divers  quantities  of  the  said  descriptions  of 
iron,  which  the  plaintiffs  ordered  of  him  for  half  the  require- 
ments of  the  plaintiffs  during  the  said  period  ending  Octo- 
ber 31st,  1872,  whereby  the  plaintiffs  were  obliged  to  procure 
quantities  of  iron  from  other  persons  at  higher  prices  than  those 
to  be  paid  as  aforesaid,  and  were  otherwise  injured.  Claim, 
^2000. 

Pleas. — I.  That  it  was  not  agreed  by  and  between  the  plain- 
tiffs and  the  defendant,  as  alleged.  2.  That  the  plaintiffs  did 
not  require  or  order  iron  as  in  the  declaration  alleged. 


SEC.  I^.]  GREAT   NORTHERN   RY.    CO.   V.  WITHAM.  1 97 

There  was  also  a  demurrer  to  each  count  of  the  declaration, 
on  the  ground  that  it  disclosed  no  consideration  for  the  defend- 
ant's promise  to  supply  the  iron  therein  mentioned.  Issue,  and 
joinder  in  demurrer. 

■  The  cause  was  tried  before  Brett,  J.,  at  the  sittings  at  West- 
minster after  the  last  term.  The  facts  were  as  follows  :  In 
October,  187 1,  the  plaintiffs  advertised  for  tenders  for  the  supply 
of  goods  (among  other  things  iron)  to  be  delivered  at  their 
station  at  Doncaster,  according  to  a  certain  specification.  The 
defendant  sent  in  a  tender,  as  follows  : 

"  I,  the  undersigned,  hereby  undertake  to  supply  the  Great 
Northern  Railway  Company,  for  twelve  months  from  Novem- 
ber ist,  1871,  to  October  31st,  1872,  with  such  quantities  of  each 
or  any  of  the  several  articles  named  in  the  attached  specification 
as  the  company's  store-keeper  may  order  from  time  to  time,  at 
the  price  set  opposite  each  article  respectively,  and  agree  to 
abide  by  the  conditions  stated  on  the  other  side. 

(Signed)  "  Samuel  With  am." 

The  company's  officer  wrote  in  reply,  as  follows  : 

"  Mr.  S.  Witham  : 

"  Sir  :  I  am  instructed  to  inform  you  that  my  directors  have 
accepted  your  tender,  dated,  etc.,  to  supply  this  company  at 
Doncaster  Station  any  quantity  they  may  order  during  the 
period  ending  October  31st,  1872,  of  the  descriptions  of  iron 
mentioned  on  the  enclosed  list,  at  the  prices  specified  therein. 
The  terms  of  the  contract  must  be  strictly  adhered  to.  Re- 
questing an  acknowledgment  of  the  receipt  of  this  letter. 

(Signed)  "  S.  Fitch, 

' '  Assistant  Secretary. 

To  this  the  defendant  replied  : 

"  I  beg  to  own  receipt  of  your  favor  of  20th  instant,  accepting 
my  tender  for  bars,  for  which  I  am  obliged.  Your  specifications 
shall  receive  my  best  attention.  S.  Witham.' 

Several  orders  for  iron  were  given  by  the  company,  which 
were  from  time  to  time  duly  executed  by  the  defendant  ;  but 
ultimately  the  defendant  refused  to  supply  any  more,  where- 
upon this  action  was  brought. 

A  verdict  having  been  found  for  the  plaintiffs. 

Digby  Sey?fwur,  Q.C..,  moved  to  enter  a  nonsuit. 

Keating,  J.  In  this  case  Mr.  Digby  Seymour  moved  to  enter 
a  nonsuit.     The  circumstances  were  these  :  The  Great  Northern 


198  GREAT   NORTHERN   RV.  CO.   V.   WITHAM.       [CHAP.  I. 

Railway  Company  advertised  for  tenders  for  the  supply  of 
stores.  The  defendant  made  a  tender  in  these  words  :  "  I  hereby 
undertake  to  supply  the  Great  Northern  Railway  Company,  for 
twelve  months,  from  etc.  to  etc.,  with  such  quantities  of  each 
or  any  of  the  several  articles  named  in  the  attached  specifica- 
tions as  the  company's  store-keeper  may  order  from  time  to 
time,  at  the  price  set  opposite  each  article  respectively,"  etc. 
Some  orders  were  given  by  the  company,  which  were  duly  exe- 
cuted. But  the  order  now  in  question  was  not  executed  ;  the 
defendant  seeking  to  excuse  himself  from  the  performance  of 
his  agreement,  because  it  was  unilateral,  the  company  not  being 
bound  to  give  the  order.  The  ground  upon  which  it  was  put 
by  Mr.  Seymour  was,  that  there  was  no  consideration  for  the 
defendant's  promise  to  supply  the  goods  ;  in  other  words,  that, 
inasmuch  as  there  was  no  obligation  on  the  company  to  give  an 
order,  there  was  no  consideration  moving  from  the  company, 
and  therefore  no  obligation  on  the  defendant  to  supply  the 
goods.  The  case  mainly  relied  on  in  support  of  that  contention 
was  Burton  v.  Great  Northern  Railway  Co.'  But  that  is  not 
an  authority  in  the  defendant's  favor.  It  was  the  converse 
case.  The  Court  there  held  that  no  action  would  lie  against 
the  company  for  not  giving  an  order.  If  before  the  order  was 
given  the  defendant  had  given  notice  to  the  company  that  he 
would  not  perform  the  agreement,  it  might  be  that  he  would 
have  been  justified  in  so  doing.  But  here  the  company  had 
given  the  order,  and  had  consequently  done  something  which 
amounted  to  a  consideration  for  the  defendant's  promise.  I  see 
no  ground  for  doubting  that  the  verdict  for  the  plaintiffs  ought 
to  stand. 

Brett,  J.  The  company  advertised  for  tenders  for  the  supply 
of  stores,  such  as  they  might  think  fit  to  order,  for  one  year. 
The  defendant  made  a  tender  offering  to  supply  them  for  that 
period  at  certain  fixed  prices  ;  and  the  company  accepted  his 
tender.  If  there  were  no  other  objection,  the  contract  between 
the  parties  would  be  found  in  the  tender  and  the  letter  accept- 
ing it.  This  action  is  brought  for  the  defendant's  refusal  to 
deliver  goods  ordered  by  the  company  ;  and  the  objection  to 
the  plaintiffs'  right  to  recover  is,  that  the  contract  is  unilateral. 
I  do  not,  however,  understand  what  objection  that  is  to  a  con- 
tract. Many  contracts  are  obnoxious  to  the  same  complaint. 
If  I  say  to  another,  "  If  you  will  go  to  York,  I  will  give  you 
^100,"  that  is  in  a  certain  sense  a  unilateral  contract.  He  has 
not  promised  to  go  to  York.  But  if  he  goes,  it  cannot  be 
doubted  that  he  will  be  entitled  to  receive  the  ^^  100.  His  going 
1  9  Ex.  507  ;  23  L.  J.  (Ex.)  184. 


SEC.  I^.]  MOULTON   V.    KERSHAW  AND   ANOTHER.  I99 

to  York  at  my  request  is  a  sufficient  consideration  for  my  prom- 
ise. So,  if  one  says  to  another,  "  If  you  will  give  me  an  order 
for  iron,  or  other  goods,  I  will  supply  it  at  a  given  price  ;"  if 
the  order  is  given,  there  is  a  complete  contract  which  the  seller 
is  bound  to  perform.  There  is  in  such  a  case  ample  considera- 
tion for  the  promise.  So,  here,  the  company  hiiving  given  the 
defendant  an  order  at  his  request,  his  acceptance  of  the  order 
would  bind  them.  If  any  authority  could  have  been  found  to 
sustain  Mr.  Seymour's  contention,  I  should  have  considered 
that  a  rule  ought  to  be  granted.  But  none  has  been  cited. 
Burton  v.  Great  Northern  Railway  Co.'  is  not  at  all  to  the  pur- 
pose. This  is  matter  of  every  day's  practice  ;  and  I  think  it 
would  be  wrong  to  countenance  the  notion  that  a  man  who 
tenders  for  the  supply  of  goods  in  this  way  is  not  bound  to  de- 
liver them  when  an  order  is  given.  I  agree  that  this  judgment 
does  not  decide  the  question  whether  the  defendant  might  have 
absolved  himself  from  the  further  performance  of  the  contract 
by  giving  notice. 

Grove,  J.  I  am  of  the  same  opinion,  and  have  nothing 
to  add. 

Rule  refused. 


MOULTON  V.  KERSHAW  and  Another. 

In  the  Supreme  Court  of  Wisconsin,  January  8,  1884. 

\_Reported  in  59  Wisconsin  Reports  316.J 

Appeal  from  the  Circuit  Court  for  Milwaukee  County. 

The  case  is  thus  stated  by  Taylor,  J.: 

"  The  complaint  alleges  that  the  defendants  were  dealers  in 
salt  in  the  city  of  Milwaukee,  including  salt  of  the  Michigan 
Salt  Association  ;  that  the  plaintiff  was  a  dealer  in  salt  in  the 
city  of  La  Crosse,  and  accustomed  to  buy  salt  in  large  quanti- 
ties, which  fact  was  known  to  the  defendants  ;  that  on  Septem- 
ber 19th,  1882,  the  defendants,  at  Milwaukee,  wrote  and  posted 
to  the  plaintiff  at  La  Crosse  a  letter,  of  which  the  following  is 
a  copy  : 

"  '  Milwaukee,  September  19,  1882, 
"  '  J.  H.  Moulton,  Esq.,  La  Crosse,  Wis.: 

"  '  Dear  Sir  :  In  consequence  of  a  rupture  in  the  salt  trade, 
we  are  authorized  to  offer  Michigan  fine  salt,  in  full  carload  lots 
of  80  to  95  barrels,  delivered  at  your  city,  at  85  cents  per  barrel, 

>  9  Ex.  507  ;  23  L.  J.  (Ex.)  184. 


200  MOULTON   V.    KERSHAW  AND   ANOTHER.       [CHAP.  I. 

to  be  shipped  per  C.  &  N.  W.  R.  R.  Co.  only.  At  this  price  it  is 
a  bargain,  as  the  price  in  general  remains  unchanged.  Shall  be 
pleased  to  receive  your  order. 

"  '  Yours  truly, 

"  '  C.  J.  Kershaw  &  Son.' 

"  The  balance  of  the  complaint  reads  as  follows  :  '  And  this 
plaintiff  alleges,  upon  information  and  belief,  that  said  defend- 
ants did  not  send  said  letter  and  offer  by  authority  of,  or  as 
agents  of,  the  Michigan  Salt  Association,  or  any  other  party, 
but  on  their  own  responsibility.  And  the  plaintiff  further  shows 
that  he  received  said  letter  in  due  course  of  mail,  to  wit,  on 
September  20th,  1882,  and  that  he,  on  that  day,  accepted  the 
offer  in  said  letter  contained,  to  the  amount  of  2000  barrels  of 
salt  therein  named,  and  immediately,  and  on  said  day,  sent  to 
said  defendants  at  Milwaukee  a  message  by  telegraph,  as 
follows  : 

"  '  La  Crosse,  September  20,  1882. 

"  '  To  C.  J.  Kershaw  &  Son,  Milwaukee,  Wis.: 

"  '  Your  letter  of  yesterday  received  and  noted.  You  may 
ship  me  two  thousand  (2000)  barrels  Michigan  fine  salt,  as 
offered  in  your  letter.     Answer.  J.  H.  Moulton. 

"  'That  said  telegraphic  acceptance  and  order  was  duly  re- 
ceived by  said  defendants  on  September  20th,  1882,  aforesaid  ; 
that  2000  barrels  of  said  salt  was  a  reasonable  quantity  for  this 
plaintiff  to  order  in  response  to  said  offer,  and  not  in  excess  of 
the  amount  which  the  defendants,  from  their  knowledge  of  the 
business  of  the  plaintiff,  might  reasonably  expect  him  to  order 
in  response  thereto. 

"  '  That  although  said  defendants  received  said  acceptance 
and  order  of  this  plaintiff  on  said  September  20th,  1882,  they 
attempted,  on  September  21st,  1882,  to  withdraw  the  offer  con- 
tained in  their  said  letter  of  September  19th,  1882,  and  did,  on 
said  September  21st,  1882,  notify  this  plaintiff  of  the  withdrawal 
of  said  offer  on  their  part  ;  that  this  plaintiff  thereupon  de- 
manded of  the  defendants  the  delivery  to  him  of  2000  barrels  of 
Michigan  fine  salt,  in  accordance  with  the  terms  of  said  offer, 
accepted  by  this  plaintiff  as  aforesaid,  and  offered  to  pay  them 
therefor  in  accordance  with  said  terms,  and  this  plaintiff  was 
ready  to  accept  said  2000  barrels,  and  ready  to  pay  therefor  in 
accordance  with  said  terms.  Nevertheless,  the  defendants 
utterly  refused  to  deliver  the  same,  or  any  part  thereof,  by 
reason  whereof  this  plaintiff  sustained  damage  to  the  amount  of 
$800. 


SEC.  I^.]  MOULTON    V.    KERSHAW  AND    ANOTHER.  20I 

"  '  Wherefore  the  plaintiff  demands  judgment  against  the  de- 
fendants for  the  sum  of  $800,  with  interest  from  September  21st, 
1882,  besides  the  costs  of  this  action.' 

"  To  this  complaint  the  defendants  interposed  a  general  de- 
murrer. The  Circuit  Court  overruled  the  demurrer,  and  from 
the  order  overruling  the  same  the  defendants  appeal  to  this 
court." 

Benjamin  K.  Miller  for  the  appellants, 

Jenkins^  Winkler  6^  Smith  for  the  respondent,  and  oral  argu- 
ment by  Winkler. 

Taylor,  J.  The  only  question  presented  is  whether  the  appel- 
lants' letter,  and  the  telegram  sent  by  the  respondent  in  reply 
thereto,  constitute  a  contract  for  the  sale  of  2000  barrels  of 
Michigan  fine  salt  by  the  appellants  to  the  respondent  at  the 
price  named  in  such  letter. 

We  are  very  clear  that  no  contract  was  perfected  by  the  order 
telegraphed  by  the  respondent  in  answer  to  appellants'  letter. 
The  learned  counsel  for  the  respondent  clearly  appreciated  the 
necessity  of  putting  a  construction  upon  the  letter  which  is  not 
apparent  on  its  face,  and  in  their  complaint  have  interpreted 
the  letter  to  mean  that  the  appellants  by  said  letter  made  an 
express  offer  to  sell  the  respondent,  on  the  terms  stated,  such 
reasonable  amount  of  salt  as  he  might  order,  and  as  the  appel- 
lants might  reasonably  expect  him  to  order,  in  response  thereto. 
If  in  order  to  entitle  the  plaintiff  to  recover  in  this  action  it  is 
necessary  to  prove  these  allegations,  then  it  seems  clear  to  us 
that  the  writings  between  the  parties  do  not  show  the  contract. 
It  is  not  insisted  by  the  learned  counsel  for  the  respondent  that 
any  recovery  can  be  had  unless  a  proper  construction  of  the 
letter  and  telegram  constitute  a  binding  contract  between  the 
parties.  The  alleged  contract  being  for  the  sale  and  delivery 
of  personal  property  of  a  value  exceeding  $50,  is  void  by  the 
Statute  of  Frauds,  unless  in  writing.     Section  2308,  R.  S.  1878. 

The  counsel  for  the  respondent  claims  that  the  letter  of  the 
appellants  is  an  offer  to  sell  to  the  respondent,  on  the  terms 
mentioned,  any  reasonable  quantity  of  Michigan  fine  salt  that 
he  might  see  fit  to  order,  not  less  than  one  carload.  On  the 
other  hand,  the  counsel  for  the  appellants  claim  that  the  letter 
is  not  an  offer  to  sell  any  specific  quantity  of  salt,  but  simply  a 
letter  such  as  a  business  man  would  send  out  to  customers  or 
those  with  whom  he  desired  to  trade,  soliciting  their  patronage. 
To  give  the  letter  of  the  appellants  the  construction  claimed  for 
it  by  the  learned  counsel  for  the  respondent  would  introduce 
such  an  element  of  uncertainty  into  the  contract  as  would  neces- 
sarily render  its  enforcement  a  matter  of  difficulty,  and  in  every 


202  MOULTON   %K   KERSHAW  AND   ANOTHER.        [CHAP.  I. 

case  the  jury  trying  the  case  would  be  called  upon  to  determine 
whether  the  quantity  ordered  was  such  as  the  appellants  might 
reasonably  expect  from  the  party.  This  question  would  neces- 
sarily involve  an  inquiry  into  the  nature  and  extent  of  the  busi- 
ness of  the  person  to  whom  the  letter  was  addressed,  as  well  as 
to  the  extent  of  the  business  of  the  appellants.  So  that  it  would 
be  a  question  of  fact  for  the  jury  in  each  case  to  determine 
whether  there  was  a  binding  contract  between  the  parties. 
And  this  question  would  not  in  any  way  depend  upon  the  lan- 
guage used  in  the  written  contract,  but  upon  proofs  to  be  made 
outside  of  the  writings.  As  the  only  communications  between 
the  parties,  upon  which  a  contract  can  be  predicated,  are  the 
letter  and  the  reply  of  the  respondent,  we  must  look  to  them, 
and  nothing  else,  in  order  to  determine  whether  there  was  a 
contract  in  fact.  We  are  not  at  liberty  to  help  out  the  written 
contract,  if  there  be  one,  by  adding  by  parol  evidence  additional 
facts  to  help  out  the  writing  so  as  to  make  out  a  contract  not 
expressed  therein.  If  the  letter  of  the  appellants  is  an  offer  to 
sell  salt  to  the  respondent  on  the  terms  stated,  then  it  must  be 
held  to  be  an  offer  to  sell  any  quantity  at  the  option  of  the  re- 
spondent not  less  than  one  carload.  The  difficulty  and  injustice 
of  construing  the  letter  into  such  an  offer  is  so  apparent  that 
the  learned  counsel  for  the  respondent  do  not  insist  upon  it, 
and  consequently  insist  that  it  ought  to  be  construed  as  an  offer 
to  sell  such  quantity  as  the  appellants,  from  their  knowledge  of 
the  business  of  the  respondent,  might  reasonably  expect  him  to 
order. 

Rather  than  introduce  such  an  element  of  uncertainty  into 
the  contract,  we  deem  it  much  more  reasonable  to  construe  the 
letter  as  a  simple  notice  to  those  dealing  in  salt  that  the  appel- 
lants were  in  a  condition  to  supply  that  article  for  the  prices 
named,  and  requesting  the  person  to  whom  it  was  addressed  to 
deal  with  them.  This  case  is  one  where  it  is  eminently  proper 
to  heed  the  injunction  of  Justice  Foster  in  the  opinion  in 
Lyman  v.  Robinson,  14  Allen,  254  :  "  That  care  should  always 
be  taken  not  to  construe  as  an  agreement  letters  which  the  par- 
ties intended  only  as  preliminary  negotiations." 

We  do  not  wish  to  be  understood  as  holding  that  a  party  may 
not  be  bound  by  an  offer  to  sell  personal  property,  where  the 
amount  or  quantity  is  left  to  be  fixed  by  the  person  to  whom 
the  offer  is  made,  when  the  offer  is  accepted  and  the  amount  or 
quantity  fixed  before  the  offer  is  withdrawn.  We  simply  hold 
that  the  letter  of  the  appellants  in  this  case  was  not  such  an 
offer.  If  the  letter  had  said  to  the  respondent  we  will  sell  you 
all  the  Michigan  fine  salt  you  will  order,  at  the  price  and  on  the 


SEC.  le.]  MOULTON   2'.    KERSHAW  AND    ANOTHER.  203 

terms  named,  then  it  is  undoubtedly  the  law  that  the  appellants 
would  have  been  bound  to  deliver  any  reasonable  amount  the 
respondent  might  have  ordered,  possibly  any  amount,  or  make 
good  their  default  in  damages.  The  case  cited  by  the  counsel 
decided  by  the  California  Supreme  Court  (Keller  v.  Ybarru, 
3  Cal.  147)  was  an  offer  of  this  kind  with  an  additional  limita- 
tion. The  defendant  in  that  case  had  a  crop  of  growing  grapes, 
and  he  offered  to  pick  from  the  vines  and  deliver  to  the  plaintiff, 
at  defendant's  vineyard,  so  many  grapes  then  growing  in  said 
vineyard  as  the  plaintiff  should  wish  to  take  during  the  present 
year  at  10  cents  per  pound  on  delivery.  The  plaintiff,  within 
the  time  and  before  the  offer  was  withdrawn,  notified  the  de- 
fendant that  he  wished  to  take  1900  pounds  of  his  grapes  on  the 
terms  stated.  The  Court  held  there  was  a  contract  to  deliver 
the  1900  pounds.  In  this  case  the  fixing  of  the  quantity  was 
left  to  the  person  to  whom  the  offer  was  made,  but  the  amount 
which  the  defendant  offered,  beyond  which  he  could  not  be 
bound,  was  also  fixed  by  the  amount  of  grapes  he  might  have 
in  his  vineyard  in  that  year.  The  case  is  quite  different  in  its 
facts  from  the  case  at  bar. 

The  cases  cited  by  the  learned  counsel  for  the  appellants 
(Beaupre  v.  P.  &  A.  Tel.  Co.,  21  Minn.  155,  and  Kinghorne  v. 
Montreal  Tel.  Co.,  U.  C  18  Q.  B.,  60)  are  nearer  in  their  main 
facts  to  the  case  at  bar,  and  in  both  it  was  held  there  was  no 
contract.  We,  however,  place  our  opinion  upon  the  language  of 
the  letter  of  the  appellants,  and  hold  that  it  cannot  be  fairly 
construed  into  an  offer  to  sell  to  the  respondent  any  quantity  of 
salt  he  might  order,  nor  any  reasonable  amount  he  might  see 
fit  to  order.  The  language  is  not  such  as  a  business  man  would 
use  in  making  an  offer  to  sell  to  an  individual  a  definite  amount 
of  property.  The  word  "sell"  is  not  used.  They  say,  "  we 
are  authorized  to  offer  Michigan  fine  salt,"  etc.,  and  volunteer 
an  opinion  that  at  the  terms  stated  it  is  a  bargain.  They  do 
not  say,  we  offer  to  sell  to  you.  They  use  general  language, 
proper  to  be  addressed  generally  to  those  who  were  interested 
in  the  salt  trade.  It  is  clearly  in  the  nature  of  an  advertisement 
or  business  circular,  to  attract  the  attention  of  those  interested 
in  that  business  to  the  fact  that  good  bargains  in  salt  could  be 
had  by  applying  to  them,  and  not  as  an  offer  by  which  they 
were  to  be  bound,  if  accepted,  for  any  amount  the  persons  to 
whom  it  was  addressed  might  see  fit  to  order.  We  think  the 
complaint  fails  to  show  any  contract  between  the  parties,  and 
the  demurrer  should  have  been  sustained.' 

1  I  am  of  opinion  that  the  defendants  are  entitled  to  judgment.  The 
action  is  brought  against  persons  who  issued  a  circular  offering  a  stock  for 


204  SHEPARD   V.    CARPENTER.  [CHAP.  I. 

By  the  Court.  The  order  of  the  Circuit  Court  is  reversed, 
and  the  cause  remanded  for  further  proceedings  according  to 
law. 


EUGENE  S.  SHEPARD  v.   HERBERT  M.  CARPENTER. 

In  the  Supreme  Court  of  Minnesota,  July  13,  1893. 

[Reported  in  54  Minnesota  Reports  153.] 

Appeal  by  plaintiff,  Eugene  S.  Shepard,  from  a  judgment  of 
the  District  Court  of  Hennepin  County,  William  Lochren  and 
Frederick  Hooker,  JJ.,  entered  January  24th,  1893,  that  he  take 
nothing  by  his  action. 

The  defendant,  Herbert  M.  Carpenter,  of  Minneapolis,  on 
April  19th,  1892,  agreed  with  plaintiff  that  he  would  enter  into 
a  contract  with  him  whereby  Shepard  should  agree  to  cut  into 
logs,  haul  and  deliver  at  the  boom  or  other  place  of  delivery  to 
be  in  and  by  said  contract  agreed  upon,  all  pine  timber  upon 
certain  lands  belonging  to  Carpenter  in  Townships  59  and  60, 
Range  26,  in  Itasca  County,  and  there  sell  the  same  at  not  less 
than  $9  per  1000  feet,  and  pay  to  Carpenter  one  third  of  the 

selling  price  of  the  logs,   to  be  paid  within days  after 

such  sale  should  be  made.  The  amount  of  timber  or  logs  to  be 
cut  in  any  one  year  was  to  be  agreed  upon  and  expressed  in 
such  contract,  and  it  was  to  be  prepared  and  executed  within 
ninety  days  thereafter,  in  case  Shepard,  on  examining  the  tim- 
ber, elected  to  enter  upon  the  work,  on  these  terms. 

sale  by  tender,  to  be  sold  at  a  discount  in  one  lot.  The  plaintiffs  sent  in  a 
tender  which  turned  out  to  be  the  highest,  but  which  was  not  accepted. 
They  now  insist  that  the  circular  amounts  to  a  contract  or  promise  to  sell 
the  goods  to  the  highest  bidder— that  is,  in  this  case,  to  the  person  who 
should  tender  for  them  at  the  smallest  rate  of  discount ;  and  reliance  is 
placed  on  the  cases  as  to  rewards  offered  for  the  discovery  of  an  offender. 
In  those  cases,  however,  there  never  was  any  doubt  that  the  advertisement 
amounted  to  a  promise  to  pay  the  money  to  the  person  who  first  gave  infor- 
mation. The  difficulty  suggested  was  that  it  was  a  contract  with  all  the 
world.  But  that,  of  course,  was  soon  overruled.  It  was  an  offer  to  become 
liable  to  any  person  who  before  the  offer  should  be  retracted  should  happen 
to  be  the  person  to  fulfil  the  contract  of  which  the  advertisement  was  an 
offer  or  tender.  That  is  not  the  sort  of  difficulty  which  presents  itself  here. 
If  the  circular  had  gone  on,  "  and  we  undertake  to  sell  to  the  highest  bid- 
der," the  reward  cases  would  have  applied,  and  there  would  have  been  a 
good  contract  in  respect  of  the  persons.  But  the  question  is,  whether  there 
is  here  any  offer  to  enter  into  a  contract  at  all,  or  whether  the  circular 
amounts  to  anything  more  than  a  mere  proclamation  that  the  defendants 
are  ready  to  chaffer  for  the  sale  of  the  goods,  and  to  receive  offers  for  the 
purchase  of  them.     In  advertisements  for  tenders  for  buildings  it  is  not 


SEC.  I<r,J  SIIEPARD   V.    CARPKXTKK.  205 

Plaintiff  examined  the  timber  and  elected  to  enter  upon  the 
work,  and  requested  defendant  to  sign  and  execute  a  contract 
therefor  pursuant  to  this  agreement  of  April  19th,  1892  ;  but 
defendant  neglected,  and  finally  refused.  This  action  was  to 
recover  damages  for  the  breach  of  that  agreement.  The  com- 
plaint stated  the  foregoing  facts,  and  attached  to  it  was  a  copy 
of  the  agreement  of  April  19th,  1892.  It  also  stated  that  there 
were  not  less  than  18,000,000  feet  of  merchantable  pine  logs  on 
the  land,  worth  $10  per  1000,  and  set  forth  the  facts  showing 
that  his  damages  were  $73,534,  for  which  sum  he  asked 
judgment. 

The  defendant  demurred  to  the  complaint  on  the  ground  that 
it  did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
After  argument  before  the  two  judges  the  demurrer  was  sus- 
tained and  judgment  was  entered  for  defendant.  The  plaintiff 
appeals. 

Larrabee  &'  Ga/nmons  for  appellant. 

W.  H.  Norris  for  respondent. 

GiLFiLLAN,  C.J.  A  contract  between  two  persons,  upon  a 
valid  consideration,  that  they  will,  at  some  specified  time  in  the 
future,  at  the  election  of  one  of  them,  enter  into  a  particular 
contract,  specifying  its  terms,  is  undoubtedly  binding,  and  upon 
a  breach  thereof  the  party  having  the  election  or  option  may 
recover  as  damages  what  such  particular  contract,  to  be  entered 
into,  would  have  been  worth  to  him,  if  made.  But  an  agree- 
ment that  they  will  in  the  future  make  such  contract  as  they 

usual  to  say  that  the  contract  will  be  given  to  the  lowest  bidder,  and  it  is 
not  always  that  the  contract  is  made  with  the  lowest  bidder.  Here  there  is 
a  total  absence  of  any  words  to  intimate  that  the  highest  bidder  is  to  be  the 
purchaser.  It  is  a  mere  attempt  to  ascertain  whether  an  offer  can  be  ob- 
tained within  such  a  margin  as  the  sellers  are  willing  to  adopt. — Willes,  J., 
Spencer  v.  Harding,  L.  R.  5  C.  P.  561,  563-564. 

The  defendant  was  admittedly  the  lowest  bidder  for  the  erection  of  de- 
fendant's building.  It  does  not  follow,  however,  that  because  he  was  the 
lowest  bidder  the  defendant  was  bound  to  award  him  the  contract.  The 
fact  that,  upon  the  opening  of  the  bids,  either  the  architect  or  the  defendant 
may  have  said  to  the  plaintiff,  "  You  are  the  lucky  man,"  amounts  to  noth- 
ing more  than  a  recognition  of  the  fact  that  he  was  the  lowest  bidder. 
After  the  bids  had  been  opened,  it  was  the  right  of  the  defendant  to  inquire 
into  the  fitness  and  ability  of  the  respective  bidders  to  fulfil  the  contract. 
He  was  not  bound  to  award  it  to  a  bidder  who  lacked  either  the  skill,  ex- 
perience, or  ability  to  properly  perform  the  contract.  In  this  case  the  con- 
tract never  was  awarded  to  the  plaintiff.  There  were  a  number  of  questions 
to  be  settled  when  the  defendant  and  the  bidder  were  brought  together, 
before  their  minds  could  be  said  to  have  agreed  upon  anything. 

The  learned  judge  below  submitted  the  case  to  the  jury  under  proper  in- 
structions, and  their  verdict  is  the  end  of  the  matter.— Per  Curiam,  Leskie  v. 
Haseltine,  155  Pa.  St.  98,  ico. — Ed. 


2o6  SHEPARD    V.    CARPENTER.  [CHAP.  I. 

may  then  agree  upon  amounts  to  nothing.  An  agreement  to 
enter  into  negotiations,  and  agree  upon  the  terms  of  a  contract, 
if  they  can,  cannot  be  made  the  basis  of  a  cause  of  action. 
There  would  be  no  way  by  which  the  Court  could  determine 
what  sort  of  a  contract  the  negotiations  would  result  in  ;  no 
rule  by  which  the  Court  could  ascertain  whether  any,  or,  if  so, 
what,  damages  might  follow  a  refusal  to  enter  into  such  future 
contract.  So,  to  be  enforceable,  a  contract  to  enter  into  a 
future  contract  must  specify  all  its  material  and  essential  terms, 
and  leave  none  to  be  agreed  upon  as  the  result  of  future  nego- 
tiations. 

The  agreement  herein  sued  on  leaves  essential  terms  of  the 
future  contract  to  be  fixed  by  future  agreement.  It  clearly  con- 
templated that  the  logs  to  be  cut  and  hauled  should  be  deliv- 
ered at  some  one  place,  but  it  does  not  specify  what  place,  but 
instead  thereof  provides  that  the  (future)  contract  shall  be  for 
plaintiff  to  cut  into  logs,  "  haul  and  deliver  at  the  boom  or 
other  place  of  delivery,  to  be  in  and  by  said  contract  agreed 
upon, "  without  indicating  what  boom,  or  where  it  may  be. 
The  place  of  delivery  was  manifestly  left  to  be  agreed  on,  and, 
when  agreed  on,  inserted  in  the  future  contract.  How  pay- 
ments were  to  be  made  by  plaintiff  for  logs  sold  by  him  was  a 
matter  of  serious  importance^  but  all  the  contract  says  of  it  is  : 
"  One  third  of  the  selling  price  thereof,  in  cash,  to  be  paid 
within days  after  such  sale  shall  be  made."  It  is  mani- 
fest the  parties  intended  the  future  contract  to  specify  the  num- 
ber of  days  within  which  payment  or  payments  were  to  be  made, 
but  that  they  had  not  agreed  on  the  number  of  days,  and  so  left 
it  to  be  agreed  on  and  inserted  in  the  future  contract.  A  per- 
haps still  more  important  matter  was  within  what  time  the  logs 
should  be  cut.  All  the  contract  says  of  that  is  "  that  the 
amount  of  timber  or  logs  to  be  cut  in  any  one  year  shall  be 
agreed  upon,  and  be  expressed  in  said  contract."  Where  a  final 
contract  fails  to  express  some  matter,  as,  for  instance,  a  time  of 
payment,  the  law  may  imply  the  intention  of  the  parties  ;  but, 
where  a  preliminary  contract  leaves  certain  terms  to  be  agreed 
upon  for  the  purpose  of  a  final  contract,  there  can  be  no  impli- 
cation of  what  the  parties  will  agree  upon. 

Judgment  affirmed. 


SEC.  i^.]  HARVEY  AND   ANOTHER   7'.    FACEV  ft  al.  20/ 

HARVEY  AND  Another,  Plaintiffs,  v.  FACEY  and  Others, 

Defendants. 

In  the  Privv  Council,  July  4,  29,  1893. 

On  Appeal  from  the  Supreme  Court  of  Jamaica. 

[Reported  in  Law  Reports  Appeal  Cases  (1893;  552.] 

Appeal  from  a  decree  of  the  Supreme  Court  (June  i8th,  1892) 
setting  aside  a  decree  of  Curran,  J.  (February  8th,  1892),  which 
dismissed  the  suit,  which  was  one  for  specific  performance  of 
an  alleged  contract  in  writing. 

The  facts  are  stated  in  the  judgment  of  their  Lordships. 

The  respondents,  Facey  and  his  wife,  denied  the  contract, 
and  pleaded  §  4  of  the  Statute  of  Frauds. 

The  question  decided  in  appeal  was  whether  the  three  tele- 
grams set  out  in  the  pleadings  constituted  a  binding  agreement 
of  sale  and  purchase. 

The  way  in  which  the  appeal  came  before  their  Lordships 
was,  that  on  July  5th,  1892,  the  Supreme  Court  gave  leave  to 
appeal  against  so  much  of  the  decree  as  was  based  on  L.  M. 
Facey's  want  of  authority  to  sell.  On  March  15th,  1893,  special 
leave  was  granted  by  Her  Majesty  to  appeal  in  respect  of  the 
damages  awarded,  but  at  the  same  time  liberty  was  given  to 
the  respondents  to  contest  the  contract. 

Horace  Davey,  Q.C.,  and  F.  Safford  ior  the  appellants. 

Farwell,  Q.C.,  and  Stewart  Smith  for  the  respondents. 

Lord  Morris  delivered  the  judgment  of  their  Lordships. 
The  appellants  instituted  an  action  against  the  respondents  to 
obtain  specific  performance  of  an  agreement  alleged  to  have 
been  entered  into  by  the  respondent,  Larchin  M.  Facey,  for  the 
sale  of  a  property  named  Bumper  Hall  Pen.  The  respondent, 
L.  M.  Facey,  was  alleged  to  have  had  power  and  authority  to 
bind  his  wife,  the  respondent,  Adelaide  Facey,  in  selling  the 
property.  The  appellants  also  sought  an  injunction  against  the 
Mayor  and  Council  of  Kingston  to  restrain  them  from  taking  a 
conveyance  of  the  property  from  L.  M.  Facey. 

The  case  came  on  for  hearing  before  Curran,  J.,  who  dis- 
missed the  action  with  costs,  on  the  ground  that  the  agreement 
alleged  by  the  appellants  did  not  disclose  a  concluded  contract 
for  the  sale  and  purchase  of  the  property.  The  Court  of  Appeal 
reversed  the  judgment  of  Curran,  J.,  and  declared  that  a  bind- 
ing agreement  for  the  sale  and  purchase  of  the  property  had 
been  proved  as  between   the  appellants    and    the    respondent, 


208  HARVEY   AND   ANOTHER   V.    FACEY  et  al.       [CHAP    I. 

L.  M.  Facey,  but  that  the  appellants  had  failed  to  establish  that 
the  said  L.  M.  Facey  had  power  to  sell  the  said  property  with- 
out the  concurrence  of  his  wife,  the  said  Adelaide  Facey,  or 
that  she  had  authorized  him  to  enter  into  the  agreement  relied 
on  by  the  appellants,  and  that  the  agreement  could  not  there- 
fore be  specifically  performed,  and  the  Court  ordered  that  the 
appellants  should  have  forty  shillings  for  damages  against 
L.  M.  Facey  in  respect  of  the  breach  of  the  agreement,  with 
costs  in  both  Courts  against  L.  M.  Facey  in  respect  of  the 
breach  of  the  agreement. 

The  appellants  obtained  leave  from  the  Supreme  Court  to 
appeal  to  Her  Majesty  in  Council,  and  afterward  obtained 
special  leave  from  Her  Majesty  in  Council  to  appeal  in  respect 
of  a  point  not  included  in  the  leave  granted  by  the  Supreme 
Court,  but  the  Order  in  Council  provided  that  the  respondents 
should  be  at  liberty  at  the  hearing,  without  special  leave  to  con- 
test the  contract  alleged  in  the  pleadings  and  affirmed  by  the 
Court  of  Appeal. 

The  appellants  are  solicitors  carrying  on  business  in  partner- 
ship at  Kingston,  and  it  appears  that  in  the  beginning  of  Octo- 
ber, 1891,  negotiations  took  place  between  the  respondent, 
L.  M.  Facey,  and  the  Mayor  and  Council  of  Kingston  for  the 
sale  of  the  property  in  question,  that  Facey  had  offered  to  sell 
it  to  them  for  the  sum  oi  JP^()<:>o^  that  the  offer  was  discussed  by 
the  council  at  their  meeting  on  October  6th,  1891,  and  the  con- 
sideration of  its  acceptance  deferred  ;  that  on  October  7th,  1891, 
L.  M.  Facey  was  travelling  in  the  train  from  Kingston  to  Porus, 
and  that  the  appellants  caused  a  telegram  to  be  sent  after  him 
from  Kingston  addressed  to  him  "  on  the  train  for  Porus,"  in 
the  following  words  :  "  Will  you  sell  us  Bumper  Hall  Pen  .' 
Telegraph  lowest  cash  price — answer  paid  ;"  that  on  the  same 
day  L.  M.  Facey  replied  by  telegram  to  the  appellants  in  the 
following  words  :  "  Lowest  price  for  Bumper  Hall  Pen  ^^900  ;" 
that  on  the  same  day  the  appellants  replied  to  the  last-men- 
tioned telegram  by  a  telegram  addressed  to  L.  M.  Facey  "  on 
train  at  Porus"  in  the  words  following  :  "  We  agree  to  buy 
Bumper  Hall  Pen  for  the  sum  of  ;^9oo  asked  by  you.  Please 
send  us  your  title  deed  in  order  that  we  may  get  early  posses- 
sion." The  above  telegrams  were  duly  received  by  the  appel- 
lants and  by  L.  M.  Facey.  In  the  view  their  Lordships  take  of 
this  case  it  becomes  unnecessary  to  consider  several  of  the  de- 
fences put  forward  on  the  part  of  the  respondents,  as  their  Lord- 
ships concur  in  the  judgment  of  Curran,  J.,  that  there  was  no 
concluded  contract  between  the  appellants  and  L.  M.  Facey  to 
be  collected  from  the  aforesaid  telegrams.     The  first  telegram 


SEC.  !<?.]         HARVEY   AND   ANOTHER   V.    FACEY   ct  al.  209 

asks  two  questions.  The  first  question  is  as  to  the  willingness 
of  L.  M.  Facey  to  sell  to  the  appellants  ;  the  second  question 
asks  the  lowest  price,  and  the  word  "  Telegraph"  is  in  its  col- 
location addressed  to  that  second  question  only.  L.  M.  Facey 
replied  to  the  second  question  only,  and  gives  his  lowest  price. 
The  third  telegram  from  the  appellants  treats  the  answer  of 
L.  M.  Facey  stating  his  lowest  price  as  an  unconditional  offer 
to  sell  to  them  at  the  price  named.  Their  Lordships  cannot 
treat  the  telegram  from  L.  M.  Facey  as  binding  him  in  any  re- 
spect, except  to  the  extent  it  does  by  its  terms — viz.,  the  lowest 
price.  Everything  else  is  left  open,  and  the  reply  telegram  from 
the  appellants  cannot  be  treated  as  an  acceptance  of  an  offer  to 
sell  to  them  ;  it  is  an  offer  that  required  to  be  accepted  by 
L.  M.  Facey.  The  contract  could  only  be  completed  if  L.  M. 
Facey  had  accepted  the  appellant's  last  telegram.  It  has  been 
contended  for  the  appellants  that  L.  M.  Facey's  telegram  should 
be  read  as  saying  "  yes"  to  the  first  question  put  in  the  appel- 
lants' telegram,  but  there  is  nothing  to  support  that  contention. 
L.  M.  Facey's  telegram  gives  a  precise  answer  to  a  precise 
question — viz.,  the  price.  The  contract  must  appear  by  the 
telegrams,  whereas  the  appellants  are  obliged  to  contend  that 
an  acceptance  of  the  first  question  is  to  be  implied.  Their 
Lordships  are  of  opinion  that  the  mere  statement  of  the  lowest 
price  at  which  the  vendor  would  sell  contains  no  implied  con- 
tract to  sell  at  that  price  to  the  persons  making  the  inquiry. 
Their  Lordships  will  therefore  humbly  advise  Her  Majesty  that 
the  judgment  of  the  Supreme  Court  should  be  reversed  and  the 
judgment  of  Curran,  J.,  restored.  The  appellants  must  pay  to 
the  respondents  the  costs  of  the  appeal  to  the  Supreme  Court 
and  of  this  appeal.' 

'  The  instruction  given  by  the  Court  to  the  jury,  to  the  effect  that  the  cor- 
respondence, taking  either  the  statement  of  plaintiff  or  defendant  as  to  the 
contents  of  plaintiff's  first  letter,  constituted  a  contract,  is  erroneous.  De- 
fendant's evndence  is  to  the  effect  that  the  letter  simply  inquired  if  he  was 
the  owner  of  the  property,  and  the  price  'thereof.  It  made  no  proposition 
to  purchase,  named  no  purchaser,  and,  in  fact,  contained  nothing  which 
could  have  been  so  understood.  The  answer  to  this  letter  simply  states  a 
price  which  defendant  regards  as  "  cheap,"  and  the  fact  that  it  would  be 
difficult  to  make  a  title  at  once.  We  do  not  understand  the  letter  to  contain 
a  proposition  to  sell  the  lots.  The  mere  statement  of  the  price  at  which 
property  is  held  cannot  be  understood  as  an  offer  to  sell.  The  seller  may 
desire  to  choose  the  purchaser,  and  may  not  be  willing  to  part  with  his 
■property  to  any  one  who  offers  his  price.  We  regard  the  correspondence, 
taking  it  as  given  in  defendant's  testimonj',  so  far  as  it  goes,  as  amounting, 
on  defendant's  part,  simply  to  a  negotiation,  and  not  to  a  binding  offer. 
It  required  the  acceptance  by  him  of  the  offer  contained  in  plaintiff's  last 
letter  to  create  a  binding  contract. — Per  Beck,  C.J.,  Knight  v.  Cooley, 
34  Iowa,  219-220. — Ed. 


2IO  PAGE  V.    NORFOLK.  [CHAP.  I. 

PAGE  V.  NORFOLK. 

In  the  Court  of  Appeal,  April  17,  1894. 

[Reported  in  70  Law  Times  Reports,  New  Series,  781,] 

Appeal  by  the  plaintiffs  from  a  decision  of  Romer,  J,' 

Finlay,  Q.C.,  and  Neville,  Q.C.  {IV.  F.  Hamilton  with  them) 
for  the  appellants. 

Hopkinson,  Q.C,  and  George  Henderson  for  the  respondents, 
were  not  called  upon  to  argue. 

Lindley,  L.J.  I  do  not  doubt  that  the  parties  in  this  case 
thought  that  they  had  contracted,  because  probably  they  did 
not  know  what  a  binding  contract  was.  [His  Lordship  stated 
the  facts  of  the  case,  and  continued  :]  Now,  why  is  that  letter 
not  a  contract  ?     At  first  sight  it  certainly  looks  like  a  contract. 

'  The  case  before  Romer,  J.,  is  reported  as  follows  in  70  Law  Times 
Reports,  New  Series,  23  : 

By  the  following  letter  the  plaintiffs,  Nathaniel  Page  and  James  Lewis 
Wigan,  sought  to  establish  a  concluded  agreement  for  the  purchase  of  the 
property  therein  stated  : 

"  Deptford  Brewery,  Kent,  S.E.,  April  17,  1893. 
"  We  hereby  offer  you  _£  145,000  for  your  business,  such  sum  to  include 
the  freehold  brewery  and  premises  at  Deptford,  the  46  freehold  and  6  lease- 
hold houses  enumerated  in  the  list  given  to  us,  the  book  debts  amounting 
to  ;{^  5000,  and  the  loans  ;^78oo,  and  all  consumable  and  rolling  stock,  fixed 
and  loose,  plant,  horses,  drays,  carts,  and  other  effects,  now  used  in  connec- 
tion with  the  business.  This  offer  is  made  subject  to  our  approving  a  de- 
tailed contract  to  be  entered  into.  The  purchase-money  to  be  paid  as  to 
;if95,ooo  in  cash,  and  as  to  ;^2o  in  preference  stock  of  the  brewery  company 
to  be  formed,  and  to  ;,{^3o,ooo  in  debenture  stock  of  the  brewery  company  to 
be  formed,  purchase  to  be  completed  on  or  before  June  24th  next. 

"  N.  Page, 
J.  Lewis  Wigan. 
"We  accept  the  above  terms. 

"  Edward  Norfolk, 
Charles  Norfolk." 

The  defendants  had  the  letter  stamped  as  an  agreement. 

On  April  24th,  1893,  the  defendants  gave  notice  to  the  plaintiffs  that  they 
withdrew  from  the  negotiation,  as  they  termed  it.  The  company  referred 
to  in  the  letter  was  never  formed.  The  plaintiffs  waived  any  detailed  con- 
tract, stated  that  they  were  willing  to  carry  out  the  contract,  and  claimed  a 
declaration  for  specific  performance  of  the  agreement  contained  in  the 
letter. 

By  their  statement  of  defence,  the  defendants  denied  the  agreement,  say- 
ing that  the  letter  was  negotiation  only.  They  also  pleaded  that  no  agree- 
ment had  been  come  to  as  to  the  capital  or  memorandum  or  articles  of  asso- 
ciation of  the  company,  or  as  to  the  amount  of  the  stock  to  be  issued  ;  or  as 
to  the  title  which  the  defendants  were  to  show  to  the  property.     There  was 


SEC.  v.]  PAGE   V.    NORFOI^K.  211 

It  contains  an  offer  and  an  acceptance.  The  reason  why  it  is 
not  a  contract  is  this  :  You  cannot  read  it  without  seeing  that, 
not  only  does  it  stipulate  that  a  detailed  contract  is  to  be  en- 
tered into,  but  also  that  various  important  details  are  left  open 
to  be  discussed  and  settled.  There  are  very  important  matters 
indeed  to  be  discussed,  agreed  on,  and  settled.  The  price 
which  was  to  be  paid  was  settled,  and  also  the  date  of  com- 
pletion.    But  the  price  was  not  to  be  wholly  paid  in  cash.      It 

evidence  that  the  question  of  the  amount  of  the  deposit  and  other  matters 
not  appearing  in  the  letter  had  been  discussed,  and  left  for  future  arrange- 
ment. 

RoMER,  J.  In  my  judgment  the  action  fails.  I  think  there  was  no  con- 
cluded agreement  between  the  parties  which  can  be  enforced  at  law.  No 
doubt  they  had  agreed  to  the  main  heads  of  the  contract,  and,  at  the  time 
when  the  letter  of  April  17th,  1893 — which  contained  the  heads  of  the  con- 
tract—was signed,  the  parties  thought  that  they  had  bound  themselves  to 
these  heads,  and  probably  thought  that  they  had  contracted  in  some  shape 
or  form  ;  but  I  think  they  intended  that  further  terms  should  be  discussed 
and  settled  and  approved  before  thej^  should  be  finally  bound.  The  terms 
of  the  letter  which  were  accepted  included  a  provision  that  the  plaintiffs' 
offer  was  to  be  made  "  subject  to  our  approving  a  detailed  contract  to  be 
entered  into."  It  is  common  ground  that  it  was  contemplated  that  the  de- 
tailed contract  would  be  prepared  by  the  vendors'  solicitors,  and  submitted 
to  the  purchasers.  It  is  also  common  ground  that  the  contract  would  con- 
tain details  going  beyond  the  heads  contained,  or  referred  to,  in  the  letter  ; 
and  it  is  clear  that  if  these  further  terms  were  to  be  inserted  on  belialf  of 
the  plaintiffs,  until  the  detailed  contract  was  approved  by  the  plaintiffs  they 
would  not  be  bound,  and  there  would  be  no  contract.  I  think  it  is  also,  to 
my  mind,  clear,  that  if  the  plaintiffs  were  not  bound,  neither  were  the  de- 
fendants. This  is  not  a  case  where  there  is  some  reference  to  a  formal  con- 
tract to  carry  out  the  terms  which  have  been  agreed  upon  and  mentioned. 
It  is  a  different  case.  It  is  a  case  where  there  is  a  reference  to  a  further 
document  to  contain  other  terms,  and  a  case  where  that  further  document 
is  to  be  a  contract  entered  into  and  approved,  and  it  is  only  subject  to  such 
reference  that  the  parties  have  come  to  any  arrangement  at  all.  In  the 
particular  case  before  me,  there  were  many  details  which  were  of  necessity 
left  to  be  arranged  and  discussed.  I  may  mention  the  deposit  :  for  with 
regard  to  that  the  plaintiffs'  own  evidence  was  to  the  effect  that  they  had 
arranged  to  give  to  the  defendants  a  very  substantial  deposit.  And  there 
were  also  other  terms  in  addition,  which  no  doubt  would  have  to  be  consid- 
ered by  the  defendants  if  they  had  gone  so  far  as  to  prepare  a  detailed  con- 
tract, which  would  have  been  also  considered  by  the  plaintiffs  when  that 
detailed  contract  came  before  them.  For  example,  the  provision  as  to  the 
title,  as  to  the  new  company,  as  to  its  stock,  its  debentures,  or  its  debenture 
stock.  Many  other  points  besides  those  which  I  have  enumerated  might  be 
mentioned.  On  these  grounds  I  have  come  to  the  conclusion  that  the  par- 
ties have  not  finally  bound  themselves  to  the  heads  of  agreement  which  the 
plaintiffs  seek  to  enforce  in  this  case — that  is  to  say,  the  heads  mentioned 
in  the  letter,  disregarding  altogether  the  provision  as  to  the  further  con- 
tract. For  these  reasons,  there  being  no  concluded  agreement,  the  action 
fails,  and  must  be  dismissed,  but  I  dismiss  it  without  costs.  —  Eu. 


212  PAGE   V.    NORFOLK.  [CHAP.  I. 

was  to  be  paid  partly  in  preference  stock  and  partly  in  deben- 
ture stock  of  a  company  which  was  to  be  formed.  All  those 
details  were  left  unsettled,  and  could  not  be  settled  then.  They 
were  matters  that  could  not  be  settled  without  a  further  docu 
ment  being  prepared.  That  is  the  cardinal  feature  of  the  case. 
That  which  the  parties  had  still  to  do  was  the  essence  of  the 
bargain.  It  is  not  only  because  the  letter  stipulates  that  the 
"  offer  is  made  subject  to  our  approving  a  detailed  contract  to 
be  entered  into."'  The  question  is,  subject  to  what?  The 
detailed  contract  was  to  be  entered  into  not  merely  for  the  pur- 
pose of  formally  expressing  that  which  had  been  already  agreed 
upon,  but  to  embody  terms  which  had  not  yet  been  agreed 
upon.  As  regards  the  authorities,  there  is  the  well-known  case 
of  Hussey  v.  Horne-Payne  (41  L.  T.  Rep.  N.  S.  i  ;  8  Ch.  Div. 
670  ;  4  App.  Cas.  311),  where  the  defendant  made  an  offer  by 
letter  to  sell  an  estate  to  the  plaintiff,  which  offer  the  plaintiff 
accepted  by  letter  "  subject  to  the  title  being  approved  by  my 
solicitor."  It  was  held  that  those  words  were  not  merely  an 
expression  of  what  would  be  implied  by  law,  but  constituted  a 
new  term  ;  that  the  plaintiff's  letter,  therefore,  was  not  an 
acceptance,  but  a  new  offer  which  had  never  been  accepted  ; 
and  that  there  was  no  binding  contract.  Again,  in  Winn  v. 
Bull  (7  Ch.  Div.  29)  the  defendant  agreed  in  writing  to  take  a 
lease  of  the  plaintiff's  house  "  subject  to  the  preparation  and 
approval  of  a  formal  contract."  No  other  contract  was  ever 
entered  into  between  the  parties  ;  and  it  was  held  that  there 
was  no  final  agreement  of  which  specific  performance  could  be 
enforced  against  the  defendant.  A  very  similar  case  was 
Hawkesworth  v.  Chaffey  (54  L.  T.  Rep.  N.  S.  72  ;  55  L.  J.,  Ch. 
335),  in  which  Winn  v.  Bull  {tibi  supra)  was  followed.  I  think, 
therefore,  that  the  decision  of  Romer,  J.,  was  right,  and  that 
this  appeal  must  be  dismissed  with  costs. 

Lopes,  L.J.  I  am  of  the  same  opinion.  I  do  not  think  that 
this  letter  constitutes  a  binding  contract  between  the  parties  of 
which  specific  performance  can  be  enforced.  No  doubt  some 
items  are  settled.  But,  to  my  mind,  there  are  a  vast  number  of 
things  to  be  agreed  on  and  settled  which  are  not  touched  upon 
by  this  contract — matters  relating  to  the  brewery  company  to 
be  formed.     There  was  no  company  in  existence  at  the  date  of 

'  It  is  contrary  to  the  essence  of  an  obligation,  that  it  should  depend  upon 
the  pure  and  single  will  of  the  person  who  is  supposed  to  have  contracted 
it,  but  it  may  depend  upon  the  pure  and  single  will  of  a  third  person  ; 
therefore  I  may  effectually  contract  an  obligation  to  give  or  do  some  thing 
if  a  third  person  consents  to  it.  -i  Pothier  on  Obligations.  Evans's  Trans- 
lation, 205.— Ed. 


SEC.  l/.]  APPLEBV   V.   JOHNSON.  213 

the  letter.  A  vast  number  of  matters  of  detail  were  to  be 
agreed  on  in  regard  to  that  company.  Then  there  are  the  ex- 
press words  in  the  contract  that  the  offer  is  made  subject  to  the 
plaintiffs  approving  a  detailed  contract  to  be  entered  into,  show- 
ing that  in  the  minds  of  the  parties  there  were  matters  left  open 
to  be  discussed.  This  is  a  much  stronger  case  than  Winn  v. 
Bull  {ubt  supra),  where  the  words  were,  "  subject  to  the  prep- 
aration and  approval  of  a  formal  contract."  Having  regard  to 
the  nature  and  subject-matter  of  this  contract,  to  the  fact  that 
no  company  had  yet  been  formed,  and  to  the  other  circum- 
stances, this  appears  to  me  a  much  stronger  case  than  Winn  v. 
Bull  {ubi  supra).     I  therefore  think  that  this  appeal  fails. 

Kay,  L.J.  Where  a  contract  is  made  as  this  is,  subject  to 
something  to  be  done  subsequently,  th&n  prima  facie  that  must 
be  done  before  the  contract  can  be  regarded  as  complete.  Here 
the  words  are  :  "  This  contract  is  made  subject  to  our  approv- 
ing a  detailed  contract  to  be  entered  into."  The  contract  re- 
lated to  the  intended  purchase  of  a  brewery  business.  It  was 
argued  that  reference  to  the  formal  contract  was  made  merely 
for  the  purpose  that  such  terms  should  be  put  into  proper  legal 
form  ;  and,  therefore,  that  it  was  not  a  condition  which  made 
the  contract  not  a  completed  one.  The  condition  is,  that  a  de- 
tailed contract  is  to  be  approved  by  both  parties.  The  agree- 
ment is  made  subject  to  the  condition  that  a  detailed  contract 
is  to  be  approved.  Before  both  parties  could  agree  on  the  de- 
tailed contract  there  would  be  several  matters  to  be  discussed 
and  further  gone  into.  In  truth,  this  letter,  though  signed  by 
both  parties,  contains  no  more  than  the  heads  of  an  agreement 
which  were  to  be  discussed  and  settled  by  both  parties  before 
there  would  be  any  concluded  agreement.  In  my  opinion, 
therefore,  the  learned  judge  in  the  Court  below  was  quite  right  ; 
and  consequently  this  appeal  fails  and  must  be  dismissed  with 
costs. 

Appeal  dismissed. 

(_/)  Acceptance  must  be  in  terms  of  offer. 

APPLEBY  V.  JOHNSON. 

In  the  Common  Pleas,  February  6,  1874. 

[Reported  in  Laiv  Reports,  9  Common  Pleas  158.] 

Action  against  the  defendant,  a  calico-printer  at  Manchester, 
for  alleged  wrongful  dismissal  of  the  plaintiff,  a  salesman,  from 
his  service. 

The  cause  was   tried   before   Brett,   J.,    at  the  last  Summer 


214  APPLEBY   V.   JOHNSON.  [CHAP.  I. 

Assizes  at  Manchester,  when  the  following  letters  were  relied 
upon  by  the  plaintiff  as  containing  the  terms  of  his  engagement 
by  the  defendant  : 

"  September  21,  1871. 
"  J.  Appleby,  Esq.: 

"  Dear  Sir  :  Referring  to  my  conversation  with  you,  I  have 
now  the  pleasure  to  state  my  willingness  to  enter  the  service  of 
your  firm  for  one  year  on  trial,  on  the  following  terms — viz.,  a 
list  of  the  merchants  to  be  regularly  called  on  by  me  to  be 
made,  and  corrected  as  occasion  requires.  My  salary  for  the 
year  to  be  ;^  120,  and  in  addition  a  commission  of  \d.  per  piece 
on  all  sales  effected  or  orders  taken  by  myself  ;  also  on  all  re- 
turn orders  received  for  patterns  given  out  directly  by  me  to 
any  of  my  customers,  whether  such  orders  are  received  by  me 
or  others  ;  and  \d.  per  piece  to  be  allowed  to  me  on  all  casual 
sales  made  in  your  warehouse  by  others  than  myself  to  any  of 
my  regular  list  of  customers. 

"  If  the  terms  herein  specified  are  in  accordance  with  your 
ideas,  kindly  confirm  them  by  return,  and  I  will  then  prepare 
to  enter  on  my  duties  at  your  warehouse  on  Monday  morning 
next  ;  and  trust  by  energetic  and  persevering  work  to  effect  a 
mutually  favorable  result  to  the  engagement. 

(Signed)  *'  A.  J.  Johnson." 

"  September  22,  1871. 
*'  Mr.  a.  J.  Johnson  : 

"  Dear  Sir  :  Yours  of  yesterday  embodies  the  substance  of 
our  conversation  and  terms.  If  we  can  define  some  of  the 
terms  a  little  clearer,  it  might  prevent  mistakes  ;  but  I  think 
we  are  quite  agreed  on  all.  We  shall,  therefore,  expect  you  on 
Monday.  (Signed)  J.  Appleby. 

"  P.S.  I  have  made  a  list  of  customers,  which  we  can  con- 
sider together." 

The  plaintiff  accordingly  entered  into  the  defendant's  service 
as  salesman  on  September  25th,  1871,  and  the  defendant  sup- 
plied him  with  a  list  of  customers  upon  whom  he  was  to  call. 
He  continued  in  the  defendant's  employ  down  to  March,  1872, 
without  any  disagreement.  But,  in  consequence  of  some  dis- 
pute as  to  commission  on  certain  orders,  the  plaintiff  about  this 
time  intimated  to  the  defendant  that  he  should  terminate  his 
engagement  at  the  expiration  of  the  year  for  which  he  was 
engaged. 

On  May  3d,  1872,  the  defendant  gave  the  plaintiff  a  month's 
notice  to  quit,  relying  upon  a  supposed  custom  of  the  trade. 


SEC.  I/.]  APPLEBY   V.   JOHNSON.  21$ 

Evidence  was  offered  on  the  part  of  the  defendant,  that,  at 
an  interview  between  the  parties  after  the  interchange  of  tlie 
above  letters,  and  before  the  service  was  entered  upon,  it  was 
verbally  agreed  that  the  hiring  should  be  subject  to  the  cus- 
tomary month's  notice. 

The  learned  judge,  however,  ruled  that  the  contract  was  com- 
plete by  the  two  letters  of  September  21st  and  226.,  1871,  sub- 
ject only  to  the  terms  being  more  clearly  expressed,  but  not  to 
any  alteration  of  those  terms  :  and  he  accordingly  refused  to 
receive  the  evidence  tendered. 

A  verdict  having  been  found  for  the  plaintiff  for  ^65  15^.  ^d., 

Pope,  Q.C.,  in  Michaelmas  Term  last,  obtained  a  rule  nisi  (or 
anew  trial,  on  the  ground  of  the  improper  rejection  of  evidence. 

Herschell,  Q.C.,  and  Taylor  showed  cause. 

Pope,  Q.C.,  and  Hopwood  \x\  support  of  the  rule. 

Keating,  J.  The  question  is,  whether  the  two  letters  of 
September  21st  and  22d,  1871,  constituted  a  complete  contract 
between  the  parties  ;  because  there  can  be  no  dispute  that,  if 
there  was  a  complete  contract  in  those  letters,  the  contract  being 
one  for  which  writing  is  necessary,  that  contract  could  not  be 
varied  by  anything  which  subsequently  passed  between  the 
parties  by  word  of  mouth.  After  full  consideration,  I  have 
come  to  the  conclusion  that  those  letters  do  not  constitute 
a  complete  contract.  The  plaintiff,  who  was  proposing  to 
enter  into  the  service  of  the  defendant  as  salesman,  writes, 
"  I  have  the  pleasure  to  state  my  willingness  to  enter  the 
service  of  your  firm  for  one  year  on  trial,  on  the  following 
terms."  The  first  term  is,  "A  list  of  merchants  to  be  regu- 
larly called  on  by  me  to  be  made,  and  corrected  as  occasion 
requires."  No  doubt,  corrections  would  from  time  to  time 
be  required.  But  the  list  was  in  the  first  instance  to  be  made. 
The  letter  goes  on,  "  My  salary  for  the  year  to  be  ;!^i2o,  and 
in  addition  a  commission  of  \d.  per  piece  on  all  sales  effected 
or  orders  taken  by  myself,  also  on  all  return  orders  received  for 
patterns  given  out  directly  by  me  to  any  of  my  customers, 
whether  such  orders  are  received  by  me  or  others."  I  take  the 
meaning  of  that  to  be,  that,  besides  the  stipulated  salary,  the 
plaintiff  was  to  have  a  commission  of  \d.  per  piece  on  all  orders 
procured  by  him  from  the  customers  named  in  the  list  to  be 
made  out.  It  then  goes  on,  "  and  \d.  per  piece  to  be  allowed 
to  me  on  all  casual  sales  made  in  your  warehouse  by  others  than 
myself  to  any  of  my  regular  list  of  customers."  There  was, 
therefore,  as  it  seems  to  me,  to  be  an  appropriation  of  a  set  of 
customers  upon  whose  dealings  the  plaintiff  was  to  have  a  com- 
mission.    Then  the  letter  concludes,  "  If  the  terms  herein  ex- 


2l6  APPLEBY   V.   JOHNSON.  [CHAP.  I. 

pressed  are  in  accordance  with  your  ideas,  kindly  confirm  them 
by  return,  and  I  will  then  prepare  to  enter  on  my  duties  at  your 
warehouse  on  Monday  morning  next."  The  defendant's  an- 
swer is  as  follows  :  "  Yours  of  yesterday  embodies  the  substance 
of  our  conversation  and  terms.  If  we  can  define  some  of  the 
terms  a  little  clearer,  it  might  prevent  mistakes  ;  but  I  think 
we  are  quite  agreed  on  all.  We  shall,  therefore,  expect  you  on 
Monday."  I  do  not  think  that  is  the  way  in  which  mercantile 
men  usually  make  a  contract.  My  opinion  of  the  letter,  stop- 
ping there,  is,  that  it  is  not  an  unconditional  and  definitive 
acceptance  of  the  plaintiff's  proposal,  or,  as  the  plaintiff  puts  it, 
a  confirmation  of  his  letter.  Then  comes  this  postscript,  "  I 
have  made  a  list  of  customers,  which  we  can  consider  together." 
That  has  reference  to  an  important  term  in  the  proposed  con- 
tract— viz.,  the  amount  of  the  commission,  which  was  to  be  the 
subject  of  further  discussion.  It  seems  to  me,  therefore,  that 
the  two  letters  did  not  constitute  a  complete  contract,  and  con- 
sequently that  the  foundation  of  Mr.  Herschell's  argument  fails. 
I  may  say  that  my  Brother  Brett  at  nisi  prius  took  a  different 
view.  He  thought  the  letters  constituted  a  complete  contract, 
and  that  no  new  terms  could  be  added  by  parol  evidence,  and 
consequently  he  rejected  it.  It  seems  to  me  that  he  was  wrong, 
and  that  the  rule  must  be  made  absolute. 

Grove,  J,  I  am  of  the  same  opinion.  Questions  of  this  sort 
are  constantly  arising.  Where  a  contract  is  to  be  made  out  by 
an  offer  on  one  side  and  an  acceptance  on  the  other,  if  the  an- 
swer is  equivocal  or  anything  is  left  to  be  done,  the  two  do  not 
constitute  a  binding  contract.  It  seemed  to  me  very  early  in 
the  argument  that  the  letter  of  September  22d  did  not  amount 
to  an  unequivocal  acceptance  of  the  offer  contained  in  the  plain- 
tiff's letter  of  the  21st.  The  second  letter  refers  to  terms  which 
required  to  be  further  considered,  to  make  a  final  agreement. 
If  the  acceptance  is  not  clear  and  certain,  but  leaves  something 
to  be  arranged,  something  for  future  discussion  and  decision, 
the  parties  are  not  ad  idetn.  Some  stress  has  been  laid  on  the 
words  in  the  defendant's  letter,  "  We  shall,  therefore,  expect 
you  on  Monday."  But  those  words  do  not  show  that  there  was 
a  conclusive  acceptance  of  the  plaintiff's  offer.  Then  comes 
the  postscript,  which  is  not  unimportant  :  it  shows  that  there 
were  some  of  the  elements  of  a  contract  which  remained  to  be 
settled  and  ascertained  between  the  parties,  something  that  was 
still  in  fieri.  It  involves  something  which  may  be  an  alteration 
— a  more  clearly  defining  of  something  which  may  be  the  essence 
of  the  contract.  In  fact,  one  of  the  most  important  terms — viz., 
the  amount  of  commission  the  plaintiff  was  to   receive,  is  left 


SEC.  l/.]  CROSSLEY   V.    MAYCOCK.  217 

undefined.     I  cannot  say  that  the  defendant  has  by  his  letter 
done  what  the  plaintiff  asked  him  to  do — viz.,  confirm  his  offer. 
There  was,  therefore,  no  complete  agreement,  and  the  rule  for 
a  new  trial  must  be  made  absolute.' 
Rule  absolute. 


CROSSLEY  V.  MAYCOCK. 

In  Chancery,  before  Sir  George  Jessel,  M.R.,  February  18, 

1874. 

[Reported  z'n  Law  Reports,  18  Equity  Cases  iSo.J 

Demurrer. 

This  was  a  suit  by  vendors  for  the  specific  performance  of  a 
contract  for  the  sale  of  land. 

The  bill  alleged  that  the  defendants  offered  to  purchase  the 
plot  of  land  in  question  by  a  letter  dated  October,  1873,  which 
was  in  the  following  terms  : 

"  We  beg  to  submit  our  offer  for  the  plot  of  land  on  the  east 
side  of  Tuel  Lane — viz.,  jQi  per  yard  superficial  ;  the  purchase 
to  be  completed  and  possession  given  up  on  or  before  Jan- 
uary 2ist,  1874." 

That  the  plaintiffs  sent  the  following  answer  to  the  defend- 
ants, dated  October  27th,  1873  : 

"  We  are  in  receipt  of  your  note  offering  us  ;£2  per  superficial 
yard  for  the  plot  of  land  on  the  east  side  of  Tuel  Lane,  which 
offer  we  accept,  and  now  hand  you  two  copies  of  conditions  of 
sale,  which  we  have  signed  ;  we  will  thank  you  to  sign  same, 
and  return  one  of  the  copies  to  us." 

That  the  conditions  of  sale  referred  to  in  the  above  letter 
(which  were  set  out  in  the  bill)  were  prepared  in  duplicate, 
signed  by  the  plaintiffs,  and  enclosed  with  the  letter  to  the 
defendants,  and  after  reciting  that  the  plaintiffs  had  agreed  to 
sell  and  the  defendants  to  buy  the  piece  of  land  therein  de- 
scribed, various  stipulations  were  made  as  to  the  delivery  of  the 
abstract,  the  time  within  which  objections  should  be  made  to 
the  title,  and  the  time  when  the  purchase  should  be  completed. 

That  the  defendants  did  not  sign  the  agreement  containing 
the  conditions  of  sale,  and  that  they  subsequently  refused  to 
complete  the  contract. 

The  bill  prayed  a  declaration  that  the  said  two  letters  created 

'  The  opinion  of  Honyman,  J.,  has  been  omitted. — Ed. 


2l8  BAKER   V.    HOLT.  [CHAP.  I. 

a  binding  contract  for  the  sale  and  purchase  of  the  said  plot  of 
land,  which  ought  to  be  specifically  performed. 

Southgate,  Q.C.,  and  North  in  support  of  the  demurrer. 

Fry,  Q.C,  and  Joliffe  in  support  of  the  bill. 

Jessel,  M.R.  The  only  question  in  this  case  is,  what  is  the 
true  construction  of  the  letter  of  the  plaintiffs  of  October  27th, 
1873.  The  defendants  had  written  to  the  plaintiffs,  offering  to 
purchase  the  land  in  question,  to  which  the  plaintiffs  replied  as 
follows  : 

"  We  are  in  receipt  of  your  note  offering  ^,^2  per  yard  for  the 
plot  of  land,  which  offer  we  accept,  and  now  hand  you  two 
copies  of  conditions  of  sale,  which  we  have  signed  ;  we  will 
thank  you  to  sign  same,  and  return  one  of  the  copies  to  us." 

The  principle  which  governs  these  cases  is  plain.  If  there  is 
a  simple  acceptance  of  an  offer  to  purchase,  accompanied  by  a 
statement  that  the  acceptor  desires  that  the  arrangement  should 
be  put  into  some  more  formal  terms,  the  mere  reference  to  such 
a  proposal  will  not  prevent  the  Court  from  enforcing  the  final 
agreement  so  arrived  at.  But  if  the  agreement  is  made  subject 
to  certain  conditions  then  specified  or  to  be  specified  by  the 
party  making  it,  or  by  his  solicitor,  then,  until  those  conditions 
are  accepted,  there  is  no  final  agreement  such  as  the  Court  will 
enforce. 

Here  the  allegation  is  that  the  agreement  was  subject  to  cer- 
tain conditions  of  sale,  which  were  very  special,  and  such  as  no 
purchaser  would  be  bound  to  accept  under  an  open  contract. 
1  am  of  opinion  that  the  acceptance  was  only  conditional,  and 
that  there  was  no  final  contract. 

The  demurrer  must  be  allowed. 


BAKER  V.  HOLT. 

In  the  Supreme  Court  of  Wisconsin,  November  21,  1882. 

[Reported  in  56  Wzsconszn  Reports  100.] 

Appeal  from  the  Circuit  Court  for  Wood  County. 

The  case  is  stated  in  the  opinion. 

George  L.  Williains  and  P.  L.  Spooner  for  the  appellant,  and 
oral  argument  by  Spooner. 

L.  P.  Powers  for  the  respondent. 

Taylor,  J.  This  action  is  brought  to  compel  the  specific  per- 
formance of  a  contract  for  the  sale  of  real  estate  which  the 
plaintiff  claimed  he  had  purchased  from  the  defendant.     The 


SEC.  l/.]  BAKER   V.    HOLT.  219 

plaintiff  resided  at  Centralia,  in  this  State,  and  the  defendant 
at  Hartford,  Conn.  The  contract,  if  any,  was  made  by  corre- 
spondence through  the  mail.  The  following  are  copies  of  the 
letters  and  telegram  which  plaintiff  claims  made  the  contract 
of  sale  : 

"  Hartford,  Conn.,  October  24,  1881. 
"C.  O.  Baker  : 

"  Dear  Sir  :  Your  letter  came  to  hand  a  few  days  ago,  but  I 
have  delayed  answering  it  owing  to  my  being  sick.  In  regard 
to  my  land,  I  have  had  letters  from  one  or  two  other  parties 
within  a  month  wanting  to  buy  it.  I  have  told  them  I  was  not 
ready  to  sell  yet,  but  if  you  want  to  buy  now  I  will  tell  you  just 
what  I  will  do.  I  will  sell  the  whole  120  acres  for  $800  ;  one 
fourth  cash  down,  and  the  balance  in  three  equal  notes,  payable 
in  one,  two,  and  three  years,  with  interest  at  6  per  cent.  The 
notes  to  be  secured  by  mortgage  back  on  the  land.  This  is  my 
offer,  if  you  want  it  now.  I  would  not  agree  to  keep  the  offer 
good  a  great  while.      1  remain  very  truly  yours, 

"  Thomas  R.  Holt, 
"  29  Benton  Street,  Hartford,  Conn." 

"  Centralia,  Wis.,  November  7,  1881. 

"  Thomas  R.  Holt,  Esq.,  Hartford,  Conn.: 

"  Dear  Sir  :  Yours  of  October  24th  is  at  hand  and  contents 
noted.  I  will  take  your  land  at  the  figures  named  and  upon 
the  terms  mentioned  in  your  letter — $800  for  the  120  acres  ; 
$200  on  receipt  of  deed  and  $600  in  three  annual  payments  of 
$200  each,  with  interest  at  6  per  cent  ;  security  back  on  the 
land.  You  may  make  out  the  deed,  leaving  the  name  of  the 
grantee  in  blank,  and  forward  the  same  to  I.  L.  Mosher,  Esq., 
county  treasurer  of  Wood  County,  at  Grand  Rapids,  Wis.,  or 
to  your  agent,  if  you  have  one  here,  to  be  delivered  to  me  on 
payment  of  the  $200  and  the  delivery  of  the  necessary  security. 
You  will  confer  a  favor  by  notifying  me  whether  you  still  hold 
your  offer  good,  and  to  whom  you  will  send  the  deed,  at  your 
earliest  convenience. 

"  Yours  truly, 

"C.  O.  Baker." 

'  Centralia,  Wis.,  November  10,  1881. 
"  Thomas  R.  Holt,  29  Benton  Street : 

"  Have  written  you,  will  take  land  at  your  figures.     Answer. 

"  C.  O.  Baker." 

The  evidence  shows  that  it  takes  four  days  to  transmit  by 
mail  a  letter  from  Centralia  to  Hartford,  and  the  same  time 


220  BAKER   V.   HOLT.  [CHAP.  I. 

from  Hartford  to  Centralia.  It  also  shows  that  on  Novem- 
ber loth,  and  before  he  received  the  letter  of  plaintiff,  dated  the 
7th  of  the  same  month,  and  before  the  telegram  was  received, 
the  defendant  wrote  again  to  the  plaintiff,  notifying  him  that 
he  had  concluded  not  to  sell  the  land  at  the  price  named  in  his 
letter  of  October  24th,  and  that  after  the  receipt  by  the  plaintiff 
of  defendant's  letter  of  November  loth,  and  on  the  14th  of  said 
month,  plaintiff  wrote  and  mailed  to  the  defendant  the  follow- 
ing letter  : 

"  Centralia,  Wis.,  November  14,  1881. 

"Thomas  R.  Holt,  Hartford,  Conn.: 

"  Dear  Sir  :  Yours  of  November  loth  is  at  hand  and  contents 
noted.  Will  you  make  me  your  lowest  cash  offer  on  your  land, 
to  hold  good  at  least  twenty  days,  that  I  may  have  time  in 
which  to  signify  my  acceptance  of  the  offer,  if  considered 
reasonable  ;  $800  is  about  all  the  land  is  worth,  and  I  would 
not  give  much  more  for  it.  Let  me  hear  from  you  by  return 
mail,  and  oblige,  yours  truly,  C.  O.  Baker." 

The  answer  of  the  defendant  admitted  all  the  facts  above 
stated,  and  for  the  purposes  of  this  case  it  is  also  presumed  that 
the  ansv/er  admits  that  the  plaintiff  wrote  the  defendant  a  letter 
of  inquiry,  as  stated  in  his  complaint,  in  which  letter  the  lands 
of  the  defendant  were  properly  described  as  alleged  in  said 
complaint.  The  plaintiff  demurred  to  the  answer  on  the  ground 
that  it  did  not  state  facts  sufficient  to  constitute  a  defence.  The 
Circuit  Court  sustained  the  demurrer,  and  from  the  order  sus- 
taining the  same  the  defendant  appeals  to  this  Court.  This 
ruling  can  only  be  sustained  upon  the  ground  that  the  plaintiff's 
letter  of  November  7th  was  an  unqualified  acceptance  of  the 
offer  to  sell  made  by  the  defendant  in  his  letter  of  October  24th, 
or  that  the  telegram  of  November  loth  was  such  an  acceptance. 

We  are  of  the  opinion  that  the  Court  erred  in  construing  the 
letter  of  November  7th  as  an  unqualified  acceptance  of  the  de- 
fendant's offer,  and  that  the  two  letters  constituted  a  binding 
contract  of  sale.  The  defendant's  offer  entitled  him  to  have 
the  money  paid  to  him  at  Hartford,  and  the  notes  and  mortgage 
delivered  there,  and  to  deliver  his  deed  there  and  not  at  Cen- 
tralia, or  any  other  place  in  Wisconsin.  This  construction  of 
the  defendant's  letter  is  not  controverted  by  the  learned  counsel 
for  the  respondent  ;  but  he  insists  that  what  is  said  in  the  plain- 
tiff's letter  about  sending  the  deed  to  the  treasurer  of  Wood 
County,  or  his  agent  in  said  county,  if  he  had  one,  executed  in 
blank  as  to  the  name  of  the  grantee,  and  the  payment  of  the 
money  and  the  delivery  of  the  notes  and  mortgage  to  his  agent 


SEC.  l/.]  BAKER   V.    HOLT.  221 

in  said  county,  is  merely  suggested  as  a  convenient  way  of 
carrying  out  the  agreement,  and  not  as  conditions  of  his  accept- 
ance of  the  offer.  We  think  the  letter  of  the  plaintiff  is  not  sus- 
ceptible of  the  construction  given  it  by  the  learned  counsel. 
We  are  clearly  of  the  opinion  that  the  defendant  could  not  have 
compelled  the  plaintiff  to  perform  the  contract  on  his  part  un- 
less he  had  remitted  the  deed  to  the  treasurer  of  Wood  County, 
or  to  some  agent  appointed  by  him  there,  executed  in  blank  as 
to  the  grantee,  and  have  demanded  the  payment  of  the  money 
and  the  delivery  of  the  security  there,  and  not  at  his  residence 
at  Hartford,  Conn,  We  are  unable  to  distinguish  this  case 
from  the  case  of  the  Northwestern  Iron  Co.  v.  Mead,  21  Wis. 
474  ;  and  it  is  clearly  distinguishable  from  the  case  of  Matte- 
son  V.  Scofield,  27  Wis.  671. 

In  the  case  last  cited,  the  purchaser,  in  his  letter  of  accept- 
ance, states  that  he  has  deposited  the  money  in  a  bank  in  Mil- 
waukee, and  requested  the  deed  to  be  sent  to  the  bank  for  him  ; 
but  he  adds  :  "  I  suggest  this  method  of  making  the  transfer, 
as  it  saves  time  and  expense."  This  statement  in  the  letter  of 
acceptance  shows  that  it  was  not  intended  to  qualify  his  pre- 
vious unconditional  acceptance  of  the  vendor's  offer,  and  in 
addition  the  vendor  acknowledged  the  receipt  of  the  letter  of 
acceptance  and  made  no  objection  to  it  in  any  way,  nor  did  he 
withdraw  his  offer,  but  stated  that  he  had  made  up  his  mind  to 
come  to  Hudson  and  do  the  business  in  person.  In  the  case  at 
bar  the  defendant  waived  nothing  ;  and,  in  fact,  before  he  re- 
ceived the  plaintiff's  letter  of  acceptance  wrote  another  letter 
withdrawing  his  offer.  It  is  probably  true  that  he  could  not 
withdraw  his  offer  so  as  to  bind  the  plaintiff  if  the  plaintiff  had 
in  proper  time  mailed  his  letter  to  defendant  containing  an  un- 
qualified acceptance  of  his  offer.  But  this  letter  of  the  defend- 
ant withdrawing  his  offer  is  proper  evidence  tending  to  show 
that  he  waived  none  of  the  terms  of  his  original  offer.  The 
telegram  was  no  more  an  absolute  acceptance  than  the  letter. 
It  refers  to  the  letter  as  containing  plaintiff's  acceptance  of  his 
offer,  and  if  that  letter  is  not  an  unconditional  acceptance  the 
telegram  does  not  help  it. 

We  think  there  was  another  question  in  the  case — w\z.,  Was 
the  acceptance  made  in  time  ?  The  defendant's  letter  clearly 
intimated  that  he  required  an  immediate  reply  to  his  offer.  He 
notifies  the  plaintiff  that  he  has  inquiries  for  the  land  from  other 
parties,  and  that  if  plaintiff  wants  to  buy  now  he  will  sell,  etc. 
The  plaintiff  must  have  received  the  defendant's  letter  as  early 
as  October  28th  or  29th,  and  he  did  not  write  his  letter  of  accept- 
ance until  November  7th,  either  nine  or  ten  days  after  its  re- 


222  BAKER   V.    HOLT.  [CHAP,  L 

ceipt,  and  in  this  letter  the  plaintiff  seems  to  entertain  a  doubt 
as  to  whether  his  letter  of  acceptance  was  in  time,  and  closes  it 
with  the  following  inquiry  :  "  You  will  confer  a  favor  by  notify- 
ing me  whether  you  still  hold  your  of^ergood,  and  to  whom  you 
will  send  your  deed,  at  your  earliest  convenience."  We  have 
serious  doubts  whether  the  letter  of  acceptance  was  mailed  in 
time  ;  but  we  prefer  to  put  our  decision  upon  the  ground  that 
the  letter  was  not  an  unconditional  acceptance  of  the  defend- 
ant's offer. 

For  the  reason  stated,  the  Court  erred  in  sustaining  the  de- 
murrer to  the  defendant's  answer.' 

By  the  Court.  The  order  of  the  Circuit  Court  is  reversed, 
and  the  cause  remanded  for  further  proceedings  according  to 
law. 

'  The  written  agreement  between  Stitt  on  the  one  part,  and  Backus  & 
Morse  on  the  other,  is  in  the  record.  It  is  an  agreement,  in  effect,  that  if 
Backus  &  Morse  shall  elect  to  buy  all  or  any  part  of  the  several  tracts  of 
land  included  in  the  conveyance  in  escrow  to  Stitt,  within  four  days,  they 
may  do  so  at  the  price  of  $55  per  acre,  on  depositing  with  Drake  Brothers 
the  sum  of  $10,000  ;  the  remainder  to  be  paid  within  sixty  days  after  the 
first  deposit.  On  the  last  of  these  four  days,  it  appears  by  an  indorsement 
made  by  Drake  Brothers  on  this  contract,  that  Backus  &  Morse  paid  in  the 
$10,000,  and  elected  to  take  the  whole  of  the  lands  ;  the  $10,000  to  be  re- 
turned if  the  title  was  not  found  to  be  good,  and  forfeited  to  Stitt  if  the 
balance  of  the  purchase-money  was  not  paid  within  the  time  stipulated. 

By  the  agreement  as  originally  made  and  signed  by  Stitt,  Backus,  and 
Morse,  the  latter  are  bound  to  nothing.  They  had  an  option  for  four  days 
'of  all  or  any  part  of  the  land  at  $55  per  acre,  and  they  had  sixty  days  after 
their  election  was  made  to  pay  the  principal  part  of  the  purchase-money. 
By  their  payment  of  the  $10,000,  they  placed  themselves  in  relation  to  Stitt 
in  a  position  where  they  could  forfeit  the  $10,000,  and  thereby  release  them- 
selves, or  pay  the  balance  within  sixty  days  and  claim  a  conveyance  of  the 
land.  Looking  to  these  papers  as  the  proper  evidence  of  the  contract 
between  Stitt,  on  the  one  part,  and  Backus  &  Morse  on  the  other,  it  is  clear 
that  there  was  never  any  obligation  on  the  part  of  the  latter  to  take  the 
land  and  pay  for  it  at  a  definite  price  ;  that  by  forfeiting  the  $10,000  they 
could  be  released  from  any  further  performance  of  that  agreement. 

This  statement  of  the  nature  of  that  contract  is  sufficient  to  show  that  it 
was  no  compliance  with  the  outstanding  offer  of  the  defendants  to  Stitt. 

They  had  never  offered  to  accept  any  such  contingent  or  optional  contract 
of  purchase,  nor  had  they  agreed  to  accept  of  any  contract  on  time.  Forty 
thousand  dollars  paid  into  Drake  &  Brother's  hands  was  the  only  valid 
acceptance  of  their  offer  which  could  bind  them. — Miller,  J.,  Stitt  v.  Huide- 
kopers,  17  Wall.  384,  396-397. — Ed. 


SEC.  l/.]   SCHENECTADY  STOVE  CO.  V.    HOLBROOK.       223 


THE  SCHENECTADY  STOVE  COMPANY,  Respondent,  v. 
HOLBROOK  ET  AL.,  Appellants. 

In  the  Court  of  Appeals  of    New  York,  December  22, 

1885. 

[Reported  in  loi  N'eiv  York  Reports  45.  J 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  first  judicial  department,  entered  upon  an  order 
made  June  ist,  1883,  which  affirmed  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict. 

This  action  was  brought  to  recover  a  balance  alleged  to  be 
due  for  goods  sold  and  delivered  to  defendants'  firm.  Defend- 
ants set  up,  as  a  counter-claim,  damages  for  an  alleged  failure 
on  the  part  of  plaintiff  to  perform  a  contract  for  the  sale  and 
delivery  of  other  goods. 

On  August  15th,  1879,  the  firm  of  Holbrook,  Merril  &  Stet- 
son, composed  of  defendants,  wrote  plaintiff,  asking  for  "  best 
prices  on  hollow-ware,  delivered  in  New  York."  On  August 
i6th,  1879,  plaintiff  answered,  enclosing  catalogue,  and  offer- 
ing the  goods  at  a  discount  from  catalogue  prices  as  follows  : 
"  Sixty  per  cent,  and  10  per  cent  cash  thirty  days,  but  this 
price  only  to  hold  good  till  September  30th." 

In  September  following,  one  Clute,  an  agent  of  the  plaintiff, 
called  upon  defendants,  and  made  some  modification  in  the 
prices.  On  September  25th  sent  an  order  with  directions  to 
"  make  five  or  six  shipments  of  above,  to  New  York,"  the  first 
one  soon  as  convenient,  the  others  to  follow  ten  days  or  two 
weeks  apart,  also  giving  directions  as  to  the  manner  of  putting 
up  and  marking  the  goods.  On  September  25th  plaintiff  wrote 
to  defendants  as  follows  :  "  Our  Mr.  Clute  has  just  returned 
and  reported  the  conversation  he  had  wnih  you,  in  respect  to 
your  order  of  22d  instant,  but  he  leaves  us  in  doubt  as  to  how 
it  is  to  be  invoiced,  at  60  per  cent  and  10  per  cent  cash,  or 
60  per  cent  and  5  per  cent  six  months  flat  note. "  On  September 
27th  defendants  sent  another  order  to  be  put  up  and  shipped 
the  same  as  directed  in  reference  to  the  first  order,  adding  this 
statement  :  "  The  price  Mr.  Clute  gave  us  was  65  per  cent  six 
months,  or  3^  per  cent  cash."  On  September  29th  plaintiff  re- 
turned the  order,  writing  as  follows  :  "  You  must  be  mistaken 
in  discount  Mr.  Clute  gave  you.  He  positively  asserts  it  was 
60  per  cent,  and  5  per  cent  six  months'  note.  We  cannot,  there- 
fore, ship  any  ware  until  you  inform  us  whether  we  are  to  in- 
voice at  60  per  cent  and  10  per  cent  cash,  or  60  per  cent  and 


224  SCHENECTADY   STOVE   CO.   V.    HOLBROOK.     [CHAP.  I. 

5  per  cent  six  months'  note.  We  return  order  of  27th,  as  it  is 
beyond  our  power  to  accept  it."  Several  other  letters  passed 
between  the  parties,  each  reiterating  their  views  as  to  the  offer 
made  by  Mr.  Clute.  On  October  3d  defendants  wrote  :  "  You 
can  invoice  the  ware  as  you  choose,  either  at  the  cash  price  or 
the  six  months'  price."  Plaintiff  filled  the  first  order,  and  the 
action  was  to  recover  a  balance  unpaid  thereon. 

Jesse  Johnson  for  appellants. 

Elihu  Root  for  respondent. 

RuGER,  C.J.  It  is  quite  obvious  that  no  contract  was  ever 
made  between  the  parties  with  respect  to  the  sale  of  the  goods 
described  in  the  order  of  September  27th.  Their  minds  never 
met  as  to  some  of  the  elements  necessary  to  constitute  a  valid 
contract.  The  catalogue  of  prices,  containing  a  statement  of 
terms  of  sale,  delivered  to  defendants  by  plaintiff  in  August, 
contained  no  proposition,  as  to  the  amount  of  goods  which  the 
plaintiff  was  willing  to  sell,  on  the  terms  stated,  and  until  an 
offer  is  made  by  one  party,  complete  and  definite  in  all  material 
terms,  it  is  not  possible  for  another  to  make  a  valid  contract 
by  the  mere  acceptance  of  a  proposition.  In  other  words,  so 
long  as  there  remains  any  of  the  material  conditions  of  a  con- 
tract to  be  settled  and  agreed  upon,  no  binding  agreement 
exists. 

In  both  of  the  orders  in  question  certain  stipulations  were 
imposed  by  the  buyers,  outside  of  terms  and  prices,  which  re- 
quired an  assent  on  the  part  of  the  vendor  to  make  a  valid  ex- 
ecutory contract  of  sale.  Thus,  the  vendees  required  the  goods 
to  be  put  up  in  a  particular  manner,  in  bundles  of  uniform  size, 
with  only  a  certain  number  of  articles  in  each  bundle,  and  that 
the  goods  should  be  shipped  to  New  York  in  five  or  six  ship- 
ments, with  ten  days  or  two  weeks  to  intervene  between  each 
shipment. 

Even  if  the  prices  and  terms  of  credit  had  been  agreed  upon 
and  understood,  the  vendor  might  well  have  declined  to  accept 
the  order  sent,  upon  the  ground  that  the  period  for  the  delivery 
of  the  goods  was  extended  beyond  the  limit  set  by  them  in 
giving  price — viz.,  September  30th,  or  that  their  proposition, 
as  to  prices,  related  only  to  orders  to  be  accompanied  by  imme- 
diate delivery,  and  payments  to  correspond  with  such  time. 
Upon  an  offer  of  immediate  sale  at  specified  terms  of  credit,  the 
buyer  cannot  extend  the  time  of  payment  by  postponing  the 
time  of  delivery,  without  the  vendor's  consent. 

But  there  is  another  objection  to  the  alleged  counter-claim.' 

'  So  much  of  the  case  as  relates  to  this  question  should  be  considered  in 
connection  with  the  cases  infra,  pp.  . — Ed. 


SEC.  I/.]       SCHENECTADY   STOVE   CO.   V.    IIOLBROOK.  22$ 

If  the  price-list,  delivered  to  the  defendants  by  the  plaintiff, 
could  be  regarded  as  containing  a  definite  proposition  to  sell, 
which  was  open  to  the  defendants  to  accept,  previous  to  Sep- 
tember 30th,  and  thus  complete  the  execution  of  a  contract,  it 
■was  still,  until  accepted,  a  mere  proposition,  which  it  was  com- 
petent for  the  plaintiff  to  withdraw  at  pleasure.  The  defendant 
did  not,  at  any  time  prior  to  September  30th,  order  goods  from 
plaintiff  upon  tlie  terms  stated  in  the  plaintiff's  price-list.  Tliey 
claim  that  some  time  during  the  month  of  September  one  Clute, 
the  agent  of  plaintiff,  gave  them  other  terms,  and  that  they, 
therefore,  had  a  right  to  order  on  the  modified  terms.  Assume 
this  to  be  so,  and  also  that  an  unconditional  order  by  the  de- 
fendants of  goods,  according  to  the  terms  as  modified  by  Clute, 
Avould  make  a  valid  contract,  yet  this  would  not  render  the 
•order  of  tlie  27th  good,  for  the  reason  that  Clute's  modification 
was  practically  withdrawn  by  the  plaintiff  before  its  acceptance 
by  defendants.  The  plaintiff  in  the  letter  of  September  25th 
assumes  that,  after  Clute's  modification,  only  two  rates  of  dis- 
count were  open  to  purchasers  under  the  price-list,  and  that 
defendants  must  conform  to  one  or  the  other  in  making  pur- 
chases. In  reply  to  this  letter,  defendants  make  the  large  order 
of  September  27th,  which  is  in  dispute,  and  require  that  it  shall 
be  accepted  upon  the  terms  which  they  had  previously  under- 
stood Clute  to  offer. 

Even  if  we  assume  that  Clute  did  make  the  modification  as 
claimed  by  defendants,  yet  they  were  informed  on  the  25th  that 
neither  Clute  nor  the  plaintiff  supposed  that  he  had  made  any 
such  modification,  and  the  only  terms  upon  which  they  were 
willing  to  make  sales  were  restated  to  the  defendants.  Not- 
withstanding this  information  and  the  implied  disavowal  of  the 
Clute  terms,  the  defendants  still  insisted  that  the  order  of  the 
27th  should  be  accepted  and  filled  according  to  their  under- 
standing of  the  prior  order.  Certainly  no  irrevocable  offer  was 
made  by  plaintiff,  and  no  contract  can  be  predicated  upon  an 
offer  which  has  been  modified  or  withdrawn  before  an  uncon- 
ditional acceptance.  If  at  the  time  an  acceptance  is  made  there 
is  a  dispute  going  on  between  the  parties  as  to  the  terms  of  the 
offer,  can  it  be  said  that  the  minds  of  the  parties  have  met  when 
the  acceptance  of  the  disputed  offer  is  tendered  ?  We  think  not. 
We  have  thus  concluded  that  no  contract  for  the  sale  of  the 
goods  mentioned  in  the  order  of  September  27th  was  made  by 
the  receipt  by  the  plaintiff  of  defendants'  letter  of  that  date  ; 
and  it  is  equally  clear  that  none  was  made  afterward. 

Upon  the  29th  the  plaintiff  informed   the  defendants  that  it 
was  beyond  their  power  to  accept  that  order,  and  they  have 


226  SANDERS  et  al.   V.   POTTLITZER   FRUIT   CO.    [CHAP.  I. 

never  varied  from  this  position.  They  had  the  right  to  reject 
the  order  for  the  reason  stated,  whatever  may  have  been  the 
truth  as  to  the  controversy,  relating  to  terms  and  prices  ;  and 
after  September  30th,  no  offer  remained  open  tor  the  defend- 
ants' acceptance.  The  order  of  September  22d  was  made  good 
by  tlie  delivery  and  acceptance  of  the  goods,  the  plaintiff  having 
severed  the  orders  by  distinct  and  repeated  refusals  to  fill  the 
one  of  the  27th. 

The  judgment  should  be  affirmed. 

All  concur. 

Judgment  affirmed. 


ARCHIE   D.  SANDERS  et  al.,  Appellants,  v.  POTTLIT- 
ZER  BROS.  FRUIT   COMPANY,  Respondent. 

In  the  Court  of  Appeals  of  New  York,  December  18,  1894, 
\Reported  hi  144  New  York  Reports  209.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fifth  judicial  department,  entered  upon  an  order 
made  June  23d,  1893,  which  affirmed  a  judgment  in  favor  of 
defendant  entered  upon  the  report  of  a  referee. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion, 

Euge?ie  M.  Bartlett  for  appellants. 

George  IV.  Daggett  for  respondent. 

O'Brien,  J.  The  plaintiffs  in  this  action  sought  to  recover 
damages  for  the  breach  of  a  contract  for  the  sale  and  delivery 
of  a  quantity  of  apples.  The  complaint  was  dismissed  by  the 
referee  and  his  judgment  was  affirmed  upon  appeal.  The  only 
question  to  be  considered  is  whether  the  contract  stated  in  the 
complaint,  as  the  basis  for  damages,  was  ever  in  fact  made  so 
as  to  become  binding  upon  the  parties.  On  October  28th,  1891, 
the  plaintiffs  submitted  to  the  defendant  the  following  propo- 
sition in  writing  : 

"  Buffalo,  N.  Y.,  October  28,  1891. 

"Messrs.  Pottlitzer  Bros.  Fruit  Co.,  Lafayette,  Ind.: 

"  Gentlemen  :  We  offer  you  ten  carloads  of  apples  to  be  from 
175  to  200  barrels  per  car,  put  up  in  good  order,  from  stock  in- 
spected by  your  Mr.  Leo  Pottlitzer  at  Nunda  and  Silver  Springs. 
The  apples  not  to  exceed  one  half  green  fruit,  balance  red  fruit, 
to  be  shipped  as  follows  : 


SEC.  l/.]       SANDERS  €i  at.    V.    POTTLITZER    FRUIT   CO.  22 J 

"  First  car  between  December  ist  and  15th,  1891. 

"  Second  car  between  December  15th  and  30th,  1S91,  and  one 
car  each  ten  days  after  January  ist,  1892,  until  all  are  shipped. 
Dates  above  specified  to  be  considered  as  approximate  a  few 
days  either  way,  at  the  price  of  $2.00  per  barrel,  free  on  board 
cars  at  Silver  Springs  and  Nunda,  in  refrigerator  cars,  this 
proposition  to  be  accepted  not  later  than  the  3rst  inst.,  and  you 
to  pay  us  $500  upon  acceptance  of  the  proposition,  to  be  de- 
ducted from  the  purchase  price  of  apples  at  the  rate  of  $roo  per 
•car  on  the  last  five  cars. 

"  Yours  respectfully, 

"  J.  Sanders  &  Son," 

To  this  proposition  the  defendant  replied  by  telegraph  on 
October  31st  as  follows  : 

''Lafayette,  Ind.,  October  31. 
"  J.  Sanders  &  Son  : 

"  We  accept  your  proposition  on  apples,  provided  you  will 
change  it  to  read  car  every  eight  days  from  January  ist,  none 
in  December  ;  wire  acceptance. 

"  POTTLITZER  BrOS.    FrUIT  Co.  " 

On  the  same  day  the  plaintiffs  replied  to  this  despatch  to  the 
effect  that  they  could  not  accept  the  modification  proposed,  but 
must  insist  upon  the  original  offer.  On  the  same  day  the  de- 
fendant answered  the  plaintiffs'  telegram  as  follows  : 

"  Can  only  accept  condition  as  stated  in  last  message.  Only 
way  we  can  accept.  Answer  if  accepted.  Mail  contract  and 
we  will  then  forward  draft. 

"  POTTLITZER  BrOS.    FrUIT  Co.  " 

The  matter  thus  rested  till  November  4th,  when  the  plaintiffs 
received  the  following  letter  from  the  defendant  : 

"  Lafayette,  Ind.,  November  2,  1891. 

"  J.  Sanders  &  Son,  Stafford,  N.  Y.: 

"  Gents  :  We  are  in  receipt  of  your  telegrams,  also  your  favor 
of  the  31st  ult.  While  we  no  doubt  think  we  have  offered  you 
a  fair  contract  on  apples,  still  the  dictator  of  this  has  learned  on 
his  return  home  that  there  are  so  many  near-by  apples  coming 
into  market  that  it  will  affect  the  sale  of  apples  in  December, 
and,  therefore,  we  do  not  think  it  advisable  to  take  the  contract 
unless  you  made  it  read  for  shipment  from  January  ist.  We 
are  very  sorry  you  cannot  do  this,  but  perhaps  we  will  be  able 
to  take  some  fruit  from  you,  as  we  will  need  it  in  the  spring. 


228  SANDERS  ct  ah   V.    POTTLITZER   FRUIT   CO.     [cHAP.  L 

If  you  can  change  the  contract  so  as  to  read  as  we  wired  you 
we  will  accept  it  and  forward  you  draft  in  payment  on  same. 

"  POTTLITZER   FrUIT   CO." 

On  receipt  of  this  letter  the  plaintiffs  sent  the  following  mes- 
sage to  the  defendant  by  telegraph  : 

"  November  4. 

"  POTTLITZER  Bros.  Fruit  Co.,  Lafayette,  Ind.: 

"  Letter  received.  Will  accept  conditions.  If  satisfactory, 
answer  and  will  forward  contract. 

"  J,  Sanders  &  Son." 

The  defendant  replied  to  this  message  by  telegraph,  saying  : 
"All  right,  send  contract  as  stated  in  our  message."  The 
plaintiffs  did  prepare  and  send  on  the  contract  precisely  in  the 
terms  embraced  in  the  foregoing  correspondence,  which  was 
the  original  proposition  made  by  the  plaintiffs,  as  modified  by 
defendant's  telegram  above  set  forth,  and  which  was  acceded 
to  by  the  plaintiffs.  This  was  not  satisfactory  to  the  defend- 
ant, and  it  returned  it  to  the  plaintiffs  with  certain  modifica- 
tions, which  were  not  referred  to  in  the  correspondence.  These 
modifications  were  :  (i)  That  the  fruit  should  be  well  protected 
from  frost  and  well  hayed  ;  (2)  that  if,  in  the  judgment  of  the 
plaintiffs,  it  was  necessary  or  prudent  that  the  cars  should  be 
fired  through,  the  plaintiffs  should  furnish  the  stoves  for  the 
purpose,  and  the  defendant  pay  the  expense  of  the  man  to  be 
employed  in  looking  after  the  fires  to  be  kept  in  the  cars  ; 
(3)  that  the  plaintiffs  should  line  the  cars  in  which  the  fruit  was 
shipped.  These  conditions  were  more  burdensome  and  ren- 
dered the  contract  less  profitable  to  the  plaintiffs.  They  were 
not  expressed  in  the  correspondence,  and  I  think  cannot  be 
implied.  They  were  not  assented  to  by  the  plaintiffs,  and  on 
their  declining  to  incorporate  them  in  the  paper  the  defendant 
treated  the  negotiations  as  at  an  end,  and  notified  the  plaintiffs 
that  it  had  placed  its  order  with  other  parties.  There  was  some 
further  correspondence,  but  it  is  not  material  to  the  question 
presented  by  the  appeal.  The  writings  afid  telegrams  that 
passed  between  the  parties  contain  all  the  elements  of  a  com- 
plete contract.  Nothing  was  wanting  in  the  plaintiffs'  original 
proposition,  but  the  defendant's  assent  to  it  in  order  to  consti- 
tute a  contract  binding  upon  both  parties  according  to  its  terms. 
This  assent  was  given  upon  condition  that  a  certain  specified 
modification  was  accepted.  The  plaintiffs  finally  assented  to 
the  modification  and  called  upon  the  defendant  to  signify  its 
assent  again  to  the  whole  arrangement  as  thus  modified,  and  it 


SEC.  I/.]       SANDERS  ct   at.    V.    POTTLITZER    FRUIT    CO.  229 

replied  that  it  was  "  all  right,"  which  mvist  be  taken  as  conclu- 
sive evidence  that  the  minds  of  the  parties  had  met  and  agreed 
upon  certain  specified  and  distinct  obligations  which  were  to  be 
observed  by  both.  It  is  true,  as  found  by  the  learned  referee, 
that  the  parties  intended  that  the  agreement  should  be  formally 
expressed  in  a  single  paper  which,  when  signed,  should  be  the 
evidence  of  what  had  already  been  agreed  upon.  But  neither 
party  was  entitled  to  insert  in  the  paper  any  material  condition 
not  referred  to  in  the  correspondence,  and  if  it  was  mserted 
without  the  consent  of  the  other  party  it  was  unauthorized. 
Hence  the  defendant,  by  insisting  upon  further  material  condi- 
tions not  expressed  or  implied  in  the  correspondence,  defeated 
the  intention  to  reduce  the  agreement  to  the  form  of  a  single 
paper  signed  by  both  parties.  The  plaintiffs  then  had  the  right 
to  fall  back  upon  their  written  proposition  as  originally  made 
and  the  subsequent  letters  and  telegrams,  and  if  they  consti- 
tuted a  contract  of  themselves  the  absence  of  the  formal  agree- 
ment contemplated  was  not  under  the  circumstances  material. 
When  the  parties  intend  that  a  mere  verbal  agreement  shall  be 
finally  reduced  to  writing  as  the  evidence  of  the  terms  of  the 
contract,  it  may  be  true  that  nothing  is  binding  upon  either 
party  until  the  writing  is  executed. 

But  here  the  contract  was  already  in  writing,  and  it  was  none 
the  less  obligatory  upon  both  parties  because  they  intended 
that  it  should  be  put  into  another  form,  especially  when  their 
intention  is  made  impossible  by  the  act  of  one  or  the  other  of 
the  parties  by  insisting  upon  the  insertion  of  conditions  and 
provisions  not  contemplated  or  embraced  in  the  correspondence. 
(Vassar?;.  Camp,  11  N.  Y.  441  ;  Brown  v.  Norton,  50  Hun,  248  ; 
Pratt  V.  H.  R.  R.  R.  Co.,  21  N.  Y.  308.)  The  principle  that 
governs  in  such  cases  was  clearly  stated  by  Selden,  J.,  in  the 
case  last  cited  in  these  words  :  "  A  contract  to  make  and  exe- 
cute a  certain  written  agreement,  the  terms  of  which  are 
mutually  understood  and  agreed  upon,  is,  in  all  respects,  as 
valid  and  obligatory,  where  no  statutory  objection  interposes, 
as  the  written  contract  itself  would  be,  if  executed.  If,  there- 
fore, it  should  appear  that  the  minds  of  the  parties  had  met  ; 
that  a  proposition  for  a  contract  had  been  made  by  one  party 
and  accepted  by  the  other  ;  that  the  terms  of  this  contract  were 
in  all  respects  definitely  understood  and  agreed  upon,  and  that 
a  part  of  the  mutual  understanding  was,  that  a  written  con- 
tract, embodying  these  terms,  should  be  drawn  and  executed 
by  the  respective  parties,  this  is  an  obligatory  contract,  which 
another  party  is  at  liberty  to  refuse  to  perform 

In  this  case  it  is  apparent  that  the  minds  of  the  partic-s  met 


230  SANDERS  et  al.   V.    POTTLITZER   FRUIT   CO.     [CHAP.  I. 

through  the  correspondence  upon  all  the  terms  as  well  as  the 
subject-matter  of  the  contract,  and  that  the  subsequent  failure 
to  reduce  this  contract  to  the  precise  form  intended,  for  the 
reason  stated,  did  not  affect  the  obligations  of  either  party, 
which  had  already  attached,  and  they  may  now  resort  to  the 
primary  evidence  of  their  mutual  stipulations.  Any  other  rule 
would  always  permit  a  party  who  has  entered  into  a  contract 
like  this  through  letters  and  telegraphic  messages  to  violate  it 
whenever  the  understanding  was  that  it  should  be  reduced  to 
another  written  form,  by  simply  suggesting  other  and  additional 
terms  and  conditions.  If  this  were  the  rule  the  contract  would 
never  be  completed  in  cases  where  by  changes  in  the  market  or 
other  events  occurring  subsequent  to  the  written  negotiations 
it  became  the  interest  of  either  party  to  adopt  that  course  in 
order  to  escape  or  evade  obligations  incurred  in  the  ordinary 
course  of  commercial  business.  A  stipulation  to  reduce  a  valid 
written  contract  to  some  other  form  cannot  be  used  for  the  pur- 
pose of  imposing  upon  either  party  additional  burdens  or  obliga- 
tions or  of  evading  the  performance  of  those  things  which  the 
parties  have  mutually  agreed  upon  by  such  means  as  made  the 
promise  or  assent  binding  in  law.  There  was  no  proof  of  any 
custom  existing  between  the  shippers  and  consignees  of  such 
property  in  regard  to  the  payment  of  the  expense  of  firing, 
lining,  and  haying  the  cars.  If  it  be  said  that  such  precautions 
are  necessary  in  order  to  protect  the  property  while  in  transit, 
that  does  not  help  the  defendant.  The  question  still  remains, 
who  was  to  bear  the  expense  ?  The  plaintiffs  had  not  agreed 
to  pay  it  any  more  than  they  had  agreed  to  pay  the  freight  or 
incur  the  other  expenses  of  transportation.  The  plaintiffs  sent 
t  a  plain  proposition  which  the  defendant  accepted  without  any 
such  conditions  as  it  subsequently  sought  to  attach  to  it.  That 
the  parties  intended  to  make  and  sign  a  final  paper  does  not 
warrant  the  inference  that  they  also  intended  to  make  another 
and  different  agreement.  The  defendant  is  in  no  better  position 
than  it  would  be  in  case  it  had  refused  to  sign  the  final  writing 
without  alleging  any  reasons  whatever.  The  principle,  there- 
fore, which  is  involved  in  the  case  is  this,  can  parties  who  have 
exchanged  letters  and  telegrams  with  a  view  to  an  agreement, 
and  have  arrived  at  a  point  where  a  clear  and  definite  propo- 
sition is  made  on  the  one  side  and  accepted  on  the  other,  with 
an  understanding  that  the  agreement  shall  be  expressed  in  a 
formal  writing,  ever  be  bound  until  that  writing  is  signed  ?  If 
they  are  at  liberty  to  repudiate  the  proposition  or  acceptance, 
BS>  the  case  may  be,  at  any  time  before  the  paper  is  signed,  and 
as  the  market  may  go     up  or  down,  then  this  case  is  well  de- 


SEC.  I/.]  SIMPSON   V.    HUGHES.  23 1 

cided.  But  if  at  the  close  of  the  correspondence  the  plaintiffs 
became  bound  by  their  offer,  and  the  defendant  by  its  accept- 
ance of  that  offer,  whether  the  final  writing  was  signed  or  not, 
as  I  think  they  did,  under  such  circumstances  as  the  record 
discloses,  then  the  conclusion  of  the  learned  referee  was  erro- 
neous. To  allow  either  party  to  repudiate  the  obligations 
clearly  expressed  in  the  correspondence,  unless  the  other  will 
assent  to  material  conditions,  not  before  referred  to,  or  to  be 
implied  from  the  transaction,  would  be  introducing  an  element 
of  great  confusion  and  uncertainty  into  the  law  of  contracts. 
If  the  parties  did  not  become  bound  in  this  case,  they  cannot 
be  bound  in  any  case  until  the  writing  is  executed. 

The  judgment  should  be  reversed  and  a  new  trial  granted, 
costs  to  abide  the  event. 

All  concur,  except  Earl,  Gray,  and  Bartlett,  JJ.,  dis- 
senting. 

Judgment  reversed. 


SIMPSON  V.   HUGHES. 

In  the  Court  of  Appeal,  March  9,  1897. 

[Reported  in  66  Law  Journal  Reports,  Chancery,  New  Series,  334.] 

The  facts  are  fully  stated  in  the  report  of  the  case  in  the 
Court  below.     Shortly  they  were  as  follows  : 

The  defendant  was  the  owner  of  a  certain  freehold  house  and 
land  called  the  "  Wray  estate."  On  November  7th,  1895,  his 
agent  wrote  on  his  behalf  to  the  plaintiff  asking  whether  he  was 
disposed  to  purchase  this  estate  at  the  price  of  ;i^ 2000.  In  an- 
swer to  this  the  plaintiff  wrote  on  November  8th,  1895,  a  letter, 
the  material  parts  of  which  were  as  follows  :  "  I  .  .  .  have  de- 
cided to  accept  Mr.  Hughes's  offer,  and  will  give  you  the  ^2000 
he  asks  for  the  freehold  of  the  Wray  property. 

"  I  should  like  to  know  from  what  time  Mr.  Hughes  wishes 
the  purchase  to  date.   ,   .   . 

"  You  do  not  mention  fences,  but  I  should  be  obliged  if  they 
tnay  be  seen  to  at  once,  as  they  really  need  attention." 

No  reply  was  made  to  this  letter. 

The  Wray  estate  was  in  the  occupation  in  part  of  Mr.  Simp- 
son, and  in  part  of  Professor  Armstrong,  as  tenants  of  Mr. 
Hughes.  Both  tenants  have  been  for  some  time  aware  of  Mr. 
Hughes's  wish  to  sell,  and  had  been  negotiating  as  to  a  pur- 
chase, and  in  September,  1895,  Mr.  Hughes's  agent  had  written 
to  Professor  Armstrong  offering   him    the   Wray   estate   upon 


232  SIMPSON   v.    HUGHES.  [CHAP.  I, 

terms  similar  to  those  contained  in  the  offer  to  Mr.  Simpson, 
Professor  Armstrong  wrote  accepting  this  offer  on  Novem- 
ber i2th,  1895. 

Both  Mr.  Simpson  and  Professor  Armstrong  brought  actions 
against  Hughes  for  specific  performance  of  their  contracts. 
Professor  Armstrong  was  made  a  defendant  to  Mr.  Simpson's 
action,  and  the  two  actions  came  on  together  for  hearing. 

RoMER,  J.,  held  that  the  letters  of  November  7th  and  8th, 
1895,  made  a  binding  contract  between  Simpson  and  Hughes, 
and  he  gave  judgment  in  favor  of  Simpson  in  his  action,  and 
dismissed  Armstrong's  action.' 

Armstrong  appealed. 

Neville^  Q.C.,  and  Leigh  Clare  for  the  appeal. 

Eve^  Q.C.,  and  H.  Fellows  for  Simpson. 

LiNDLEY,  L.J.  This  case  comes  before  us  in  a  somewhat  curi- 
ous way.  The  question  is  whether  two  persons  have  entered 
into  a  contract.  They  both  say  that  they  have,  but  a  third 
party  says  that  they  have  not.  It  is  the  more  curious  because 
the  third  party  has  already  had  a  decision  against  him,  to  the 
effect  that  he  has  got  no  contract.  If  that  is  so,  I  do  not  see 
that  he  has  got  any  locus  standi.  If  that  had  been  brought  to 
our  attention  when  the  appeal  was  opened,  we  might  have 
allowed  this  appeal  to  stand  over,  in  case  there  should  be  an 
appeal  in  the  other  action,  but  as  we  have  considered  the  matter 
we  will  dispose  of  it  now. 

The  only  question  is  whether  there  was  a  binding  contract 
between  the  plaintiff  and  defendant  Hughes  made  by  the  two 
letters  of  November  7th  and  8th,  1895.  (His  Lordship  referred 
to  the  facts,  and  continued.)  The  first  question  is  whether  the 
letter  of  November  7th,  1895,  was  an  offer  for  acceptance  at  all, 
or  anything  more  than  an  offer  by  way  of  opening  negotiations. 
There  can  be  no  difficulty  as  to  that  when  one  reads  the  corre- 
spondence. It  was  a  definite  offer,  not  an  invitation  to  nego- 
tiate, but  the  last  stage  of  the  negotiation  so  far  as  the  vendor 
was  concerned.  The  plaintiff  in  answer  says  that  he  has  de- 
cided to  accept  the  offer,  and  will  give  the  price  asked  for  the 
property.  Up  to  that  point  there  is  a  clear  and  distinct  offer 
and  acceptance.  Then  the  letter  continues  :  "  I  should  like  to 
know  from  what  time  Mr.  Hughes  wishes  the  purchase  to  date." 
It  is  said  that  that  leaves  the  matter  open,  but  I  do  not  think 
so.  There  is  no  time  fixed  for  completion,  but  that  is  not  un- 
common on  the  sale  of  real  estate,  and  if  no  time  is  fixed,  the 
inference  is  that  the  completion  will  be  within  a  reasonable 
time.  Does  the  inquiry  in  the  letter  exclude  the  inference 
'  Appeal  from  a  decision  of  Romer,  J  (reported  attfe,  p.  143). 


SEC.  i/.]  SIMPSON  V.  HUGHES.  233 

which  there  would  otherwise  be  as  to  the  time  ?  Counsel  for 
the  appellant  say  that  it  does,  but  no  time  was  reall}-  fixed — the 
matter  was  left  just  as  it  was,  with  no  time  fixed  by  either 
party.  The  inquiry  was  made  simply  as  a  matter  of  courtesy. 
If  a  reasonable  time  had  been  fixed,  Simpson  could  not  have 
got  off  his  bargain,  because  I  think  that  he  was  bound  by  his 
letter  to  complete  within  a  reasonable  time.  It  was  a  complete 
contract,  and  must  be  read  as  if  the  paragraph  were  not  there. 

Then  there  is  the  paragraph  about  the  fences.  That,  I  think, 
is  not  a  condition  of  the  purchase.  I  understand  that  the  letter 
was  written  in  answer  to  another  letter,  and  it  does  not  justify 
the  construction  sought  to  be  put  upon  it.  I  think  there  is 
nothing  in  this  letter  which  detracts  from  the  acceptance  con- 
tained in  the  first  part  of  it.  Armstrong  had  had  an  offer  of 
the  property,  and  he  wants  us  to  say  that  there  had  been  no 
bargain  between  Hughes  and  Simpson.  I  think  that  he  is 
wrong,  and  that  the  appeal  must  be  dismissed  with  costs. 

Smith,  L.J.  I  am  of  the  same  opinion.  (His  Lordship  re- 
ferred to  the  correspondence  and  continued.)  The  letter  of 
November  8th  contains  a  clear  acceptance  of  a  clear  offer  to 
purchase  the  property  for  ^2000.  If  it  had  stopped  there,  the 
completion  would  have  been  within  a  reasonable  time,  the  law 
would  import  that  it  should  be  within  a  reasonable  time,  but 
having  bound  himself  hard  and  fast,  Simpson  goes  on  to  ask  as 
to  the  date  of  the  purchase.  The  paragraph  in  which  he  does 
so  is  no  part  of  the  contract  at  all.  Simpson  did  not  thereby 
bind  himself  to  any  time,  or  to  any  term  which  Hughes  might 
see  fit  to  impose.  The  time  for  completion  was  fixed  by  law. 
I  agree,  therefore,  with  Romer,  J.,  in  the  view  that  he  took  of  it. 

Then  as  to  the  last  part  of  the  letter,  as  to  the  fences.  This 
point  was  not  taken  before  Romer,  J.,  but  it  has  been  taken 
here,  and  we  must  deal  with  it.  It  is  said  that  that  is  a  mate- 
rial term  of  the  bargain,  but  I  cannot  read  it  like  that.  It  was 
not  part  of  the  bargain,  which  was  to  buy  the  property  for 
;^2ooo,  nor  was  it  a  condition  precedent  to  the  bargain  being 
carried  out.  For  these  reasons  I  think  that  there  was  a  binding 
contract  between  Simpson  and  Hughes,  and  on  that  I  rest  my 
judgment. 

I  would  add  that  this  is  a  remarkable  case.  The  two  parties 
say  that  they  did  make  a  bargain,  but  another  person  comes 
and  says  that  they  did  not,  but  I  will  say  nothing  further  as 
to  that. 

RiGBY,  L.J.  I  am  of  the  same  opinion,  but  I  have  not  come 
to  that  conclusion  without  some  difficulty.  I  have  no  difficulty 
in  treating  the  letter  of   November  7th  as  an  offer,  and  the  only 


234  SIMPSON   V.    HUGHES.  [cHAP.  I. 

question  is  whether  there  has  been  a  complete  acceptance  of 
that  offer. 

If  I  thought  that  the  matters  contained  in  the  paragraphs  of 
the  letter  of  November  8th  that  have  been  referred  to  were  in- 
tended to  form  part  of  the  contract,  I  should  have  great  diffi- 
culty in  coming  to  the  conclusion  that  there  was  a  complete 
contract.  These  things  run  very  close,  and  I  do  not  go  so  far 
as  to  say  that  if  the  words  here  were  read,  "  I  must  know  at 
what  time  Mr.  Hughes  will  complete,"  I  should  treat  that  as 
not  being  part  of  the  express  terms  of  the  contract.  That  is  to 
say,  reading  it,  "I  will  give  the  price  subject  to  this,  that  we 
must  arrange  between  ourselves  a  date  for  completion."  If 
that  were  so,  I  should  be  inclined  to  say  that  there  was  no  com- 
plete contract.  That  would  not  be  within  the  principle,  that 
when  no  date  is  fixed  for  completion  it  must  be  within  a  reason- 
able time.  I  cannot  understand  that  the  question  whether  these 
two  letters  contained  a  valid  contract  for  the  sale  and  purchase 
of  the  land  within  the  Statute  of  Frauds  can  be  affected  by  the 
ideas  that  either  party  entertained  as  to  it.  Interpreting  the 
language  according  to  the  facts  known  at  the  time  is  a  totally 
different  thing  from  saying  what  they  thought.  But  I  agree 
with  the  conclusion  arrived  at  by  Romer,  J.,  and  the  other 
members  of  this  Court  on  this  ground,  that  I  do  not  think  that 
the  words  in  question  are  part  of  any  contract.  There  is  an 
offer  and  acceptance,  and  the  question  is,  do  these  words  qualify 
the  acceptance,  or  are  they  independent  ?  In  my  opinion,  they 
leave  it  a  complete  acceptance,  because  I  rely  on  the  form 
of  it,  which  is,  in  effect,  this  :  "  I  should  like  to  know  when  you 
will  be  ready  to  complete" — that  is,  what  is  the  day  within  a 
reasonable  time  which  you  will  fix  ? 

With  regard  to  the  last  clause,  as  to  the  fences.  It  is  obvious 
that  one  would  not  have  expected  them  to  have  been  mentioned 
unless  something  had  been  said  about  them  before.  There 
must  have  been  something,  but  what  it  was  I  do  not  know.  It 
is  remarkable  that  in  the  Court  below  no  mention  was  made  of 
this  part  of  the  case,  therefore  no  opportunity  was  given  to 
either  Simpson  or  Hughes  of  explaining  about  it.  I  do  not 
consider  that  paragraph  as  part  of  the  bargain.  The  only  part 
of  the  letter  which  contains  a  contract  is  the  first  part,  which  is 
clear.     The  appeal  must  be  dismissed  with  costs. 


SEC.  I^.]  PAYNE   V.    CAVE.  ,  235 

{g)  Termination  of  offer  by  revocation} 

PAYNE  V.   CAVE. 

In  the  King's  Bench,  May  2,  1789. 

{^Reported  in  3  Term  Reports  14S.] 

This  was  an  action,  tried  at  the  Sittings  after  last  Term  at 
Guildhall  before  Lord  Kenyon,  wherein  the  declaration  stated, 
that  the  plaintiff,  on  September  22d,  178S,  was  possessed  of  a 
certain  worm-tub,  and  a  pewter  worm  in  the  same,  which  were 
then  and  there  about  to  be  sold  by  public  auction  by  one  S.  M., 
the  agent  of  the  plaintiff  in  that  behalf  ;  the  conditions  of  which 
sale  were  to  be  the  usual  conditions  of  sale  of  goods  sold  by 
auction,  etc.,  of  all  which  premises  the  defendant  afterward,  to 
wit,  etc.,  had  notice  ;  and  thereupon  the  defendant  in  consider- 
ation that  the  plaintiff,  at  the  special  instance  and  request  of 
the  defendant,  did  then  and  there  undertake  and  promise  to 
perform  the  conditions  of  the  said  sale,  to  be  performed  by  the 
plaintiff,  as  seller,  etc.,  undertook,  and  then  and  there  promised 
the  plaintiff  to  perform  the  conditions  of  the  sale,  to  be  per- 
formed on  the  part  of  the  buyer,  etc.  And  the  plaintiff  avers, 
that  the  conditions  of  sale,  hereinafter  mentioned,  are  usual  con- 
ditions of  sale  of  goods  sold  by  auction,  to  wit,  that  the  highest 
bidder  should  be  the  purchaser,  and  should  deposit  live  shillings 
in  the  pound,  and  that  if  the  lot  purchased  were  not  paid  for 
and  taken  away  in  two  days'  time,  it  should  be  put  up  again  and 

'  Death  or  insanity  may  prevent  the  completion  of  the  contract  as  effec- 
tually as  the  most  complete  revocation,  but  they  are  not  properly  revoca- 
tions of  the  offer.  They  are  not  acts  of  the  will  of  the  offerer,  and  their 
effect  does  not  rest  upon  a  supposed  change  of  purpose.  They  interrupt  the 
completion  of  the  contract — that  is,  the  making  of  the  contract — because  a 
contract  cannot  be  made  directly  with  a  dead  man  or  a  lunatic.  The  con- 
tract is  not  made  until  the  offer  is  accepted  ;  and  if  the  person  with  whom 
you  merely  intend  to  contract  dies  or  becomes  insane  before  you  have  con- 
tracted with  him,  you  can  no  longer  contract  decidedly  with  him.  You  can- 
not, by  adhibiting  your  acceptance  to  an  offer,  and  addressing  it  to  a  dead 
man  or  a  lunatic,  make  it  binding  for  him,  whether  his  death  or  insanity 
be  or  be  not  known  to  you.  In  such  a  case  there  is  no  revocation,  in  the 
correct  use  of  the  word,  but  there  is  an  interruption — an  effective  obstacle 
to  the  completion  of  the  contract,  equivalent  in  result  to  a  revocation, 
though  operating  by  very  different  facts  and  very  different  principles. 
Revocation  or  recall  is  an  act  of  the  offerer  by  which  he  communicates  his 
change  of  purpose  and  withdraws  from  the  offeree  the  right  he  had  given 
him  to  complete  the  contract  by  acceptance. — The  Lord  President,  Thom- 
son V.  James,  18  Dunlop,  i,  10.— Ed. 


236  ,  PAYNE   V.    CAVE.  [CHAP,  I. 

resold,  etc,  [stating  all  the  conditions].  It  then  stated  that 
the  defendant  became  the  purchaser  of  the  lot  in  question  for 
;^40,  and  was  requested  to  pay  the  usual  deposit,  which  he  re- 
fused, etc.  At  the  trial,  the  plaintiff's  counsel  opened  the  case 
thus  :  The  goods  were  put  up  in  one  lot  at  an  auction  ;  there 
were  several  bidders,  of  whom  the  defendant  was  the  last  who 
bid  £,\o  ;  the  auctioneer  dwelt  on  the  bidding,  on  which  the 
defendant  said,  "  Why  do  you  dwell  ?  you  will  not  get  more." 
The  auctioneer  said  that  he  was  informed  the  worm  weighed  at 
least  1300  cwt.,  and  was  worth  more  than  ^40  ;  the  defendant 
then  asked  him  whether  he  would  warrant  it  to  weigh  so  much, 
and  received  an  answer  in  the  negative,  he  then  declared  that 
he  would  not  take  it,  and  refused  to  pay  for  it.  It  was  re-sold 
on  a  subsequent  day's  sale  for  ^£"30  to  the  defendant,  against 
whom  the  action  was  brought  for  the  difference.  Lord  Kenyon, 
being  of  opinion,  on  this  statement  of  the  case,  that  the  defend- 
ant was  at  liberty  to  withdraw  his  bidding  any  time  before  the 
hammer  was  knocked  down,  nonsuited  the  plaintiff. 

Walton  now  moved  to  set  aside  the  nonsuit,  on  the  ground 
that  the  bidder  was  bound  by  the  conditions  of  the  sale  to  abide 
by  his  bidding,  and  could  not  retract.  By  the  act  of  bidding, 
he  acceded  to  those  conditions,  one  of  which  was,  that  the  high- 
est bidder  should  be  the  buyer.  The  hammer  is  suspended, 
not  for  the  benefit  of  the  bidder,  or  to  give  him  an  opportunity 
of  repenting,  but  for  the  benefit  of  the  seller  ;  in  the  mean  time 
the  person  who  bid  last  is  a  conditional  purchaser,  if  nobody 
bids  more.  Otherwise,  it  is  in  the  power  of  any  person  to  in- 
jure the  vendor,  because  all  the  former  biddings  are  discharged 
by  the  last  ;  and,  as  it  happened  in  this  very  instance,  the  goods 
may  thereby  ultimately  be  sold  for  less  than  the  person  who  was 
last  outbid  would  have  given  for  them.  The  case  of  Simon  v. 
Metivier,^  which  was  mentioned  at  the  trial,  does  not  apply. 
That  turned  on  the  Statute  of  Frauds. 

The  Court  thought  the  nonsuit  very  proper.  The  auctioneer 
is  the  agent  of  the  vendor,  and  the  assent  of  both  parties  is 
necessary  to  make  the  contract  binding  ;  that  is  signified  on  the 
part  of  the  seller,  by  knocking  down  the  hammer,  which  was 
not  done  here  till  the  defendant  had  retracted.  An  auction  is 
not  unaptly  called  locus  pccnitenti(z.  Every  bidding  is  nothing 
more  than  an  offer  on  one  side,  which  is  not  binding  on  either 
side  till  it  is  assented  to.  But  according  to  what  is  now  con- 
tended for,  one  party  would  be  bound  by  the  offer,  and  the 
other  not,  which  can  never  be  allowed. 

Rule  refused. 

'  5  Burr,  1921. 


SEC.  I^.]  HEAD   Z'.    DIGGOX.  237 

HEAD  V.  DIGGON. 

In  the  King's  Bench,  Michaelmas  Term,  1828. 

[Reported  in  3  Manning  &^  Ry/and  ()-].~\ 

Assumpsit.  The  declaration  stated,  that  plaintiff  bargained 
for,  and  bought  from  defendant,  certain  large  quantities  of 
wool,  to  wit,  at  and  for  a  certain  rate  or  price,  to  wit,  at  or  for 
the  rate  or  price  oi  jQg  los.  for  each  and  every  pack  thereof,  and 
thereupon,  in  consideration  of  the  premises,  and  that  plaintiff 
had  undertaken  to  accept  and  pay  for  said  wool  at  and  for,  etc., 
defendant  undertook  that  he  would,  within  a  reasonable  time, 
deliver  said  wool.  Averment,  that  a  reasonable  time  had 
elapsed,  and  that  plaintiff  had  always  been  ready  and  willing  to 
receive  and  pay  ;  whereof  defendant  had  notice.  Yet  defendant 
did  not  deliver  within  such  reasonable  time,  or  at  any  time. 
Whereby  plaintiff  lost  great  gains  and  profits.  Second  count, 
stating  the  consideration  to  be,  that  plaintiff  would  buy,  receive, 
and  pay,  and  alleging  a  promise  to  sell  and  deliver,  and  a  readi 
ness  to  buy,  accept,  and  pay.  Third  count,  laying  the  promise 
to  deliver  on  request.  At  the  trial  before  Holroyd,  J.,  at  the 
last  assizes  for  the  county  of  Suffolk,  the  following  facts  ap- 
peared :  The  plaintiff  is  a  wool-factor  in  Bury  St.  Edmund's, 
the  defendant  is  a  fellmonger  at  Thetford.  On  Thursday, 
April  17th,  1828,  the  plaintiff  went  to  the  defendant's  house  at 
Thetford  to  treat  for  the  purchase  of  wool.  After  some  discus- 
sion about  the  price,  the  plaintiff  requested  of  the  defendant 
time  to  consider  of  his  terms.  The  defendant  said  he  would 
give  him  a  week.  The  plaintiff  replied  that  three  or  four  days 
would  be  enough.      The  defendant  then   wrote   the   following 

paper  : 

"  Thetford,  April  17,  1828, 

"  Offered   Mr.    Head,  of   Bury,  the   under  wool,   with  three 
days'  grace  from  the  above  date  : 

40  Sussex  head  and  Iamb,  \ 
40  Head  ditto,  >  jT^f)  \os. 

17  Broad  head,  ) 

As  per  sample — delivered  in  good  condition. 

"  Fra*.  Diggon." 

On  the  following  Monday  the  plaintiff  went  to  the  defendant  to 
accept  the  wool,  and  to  make  arrangements  for  the  delivery. 
The  defendant  said,  that  as  the  plaintiff   had   not  seen   him  or 


238  HEAD   1'.    DIGGON.  [CHAP.  1. 

written  him  on  Sunday,  he  had  given  a  price  to  one  Fyson. 
The  plaintiff  said  that  Sunday  was  not  a  day  of  business.  The 
defendant  persisted  in  refusing  to  deliver  the  wool.  Upon  this 
evidence  the  learned  judge  was  of  opinion  that  the  plaintiff  had 
failed  in  proving  a  contract  binding  on  both  parties,  and  on  the 
authority  of  Cooke  v.  Oxley'  directed  a  nonsuit,  which 

Storks  now  moved  to  set  aside.  It  is  true,  that  up  to  a  certain 
period  one  party  was  at  liberty  ;  but  in  Adams  v.  Lindsell,*  the 
defendant  offered  to  sell  certain  goods  to  the  plaintiff,  receiving 
an  answer  by  return  of  post.  The  letter  being  misdirected,  the 
answer,  signifying  the  acceptance  of  the  offer,  arrived  two  days 
later  than  it  ought  to  have  done.  The  defendant  had  on  the 
preceding  day  sold  the  goods  to  a  third  person.  The  Court 
held  that  this  was  a  binding  contract,  and  that  an  action  lay  for 
non-delivery  of  the  goods.  Cooke  v.  Oxley,  upon  which  the 
other  side  relies,  was  cited  in  Adams  v.  Lindsell,  and  may  be 
considered  as  overruled  by  the  latter  decision.  [Lord  Tenter- 
den,  C.J.  Must  both  parties  be  bound,  or  is  it  sufficient  if  one 
only  is  bound  ?  You  contend  that  the  buyer  was  to  be  free 
during  the  three  days,  and  that  the  seller  was  to  be  bound. 
The  declaration  treats  it  as  a  complete  contract,  an  absolute  and 
unconditional  bargain.  Those  counts  are  not  proved.  Whether 
a  declaration  could  be  framed  to  meet  the  facts,  we  are  not 
called  upon  to  decide.]  The  declaration  applies  to  the  contract 
at  the  period  when,  by  the  plaintiff's  acceptance,  it  became 
complete. 

Lord  Tenterden,  C.J.  If  the  contract  is  to  be  taken  as 
made  only  at  the  time  when  the  plaintiff  signified  his  acceptance 
of  the  offer,  it  is  disproved  by  the  circumstance  that  the  defend- 
ant did  not  then  agree. 

Bayley,  J.  I  am  of  the  same  opinion  •  and  in  Routledge  v. 
Grant'  it  was  held  by  the  Court  of  Common  Pleas  that  unless 
both  parties  are  bound,  neither  is  bound. 

Rule  refused. 

'  3  T.  R  653.  '  I  Barn.  &  Aid.  681. 

*  4  Bingh.  653  ;  i  Moore  &  Payne,  717,  S.C. 


SEC.  Ig.]  ROUTLEDGE   V.   GRANT.  239 

ROUTLEDGE  v.  GRANT. 

In  the  Common  Pleas,  May  13,  1828. 
^Reported  in  4  Bingham  653.] 

Assumpsit,  The  declaration  stated  (first  count)  that  the 
plaintiff  was  possessed  of  a  term  in  a  dwelling-house,  to  expire 
December  25th,  1856  ;  and  that  defendant  agreed,  on  April  29th, 
1825,  upon  receiving  a  lease  for  twenty-one  years,  at  ^250  a 
year  rent,  with  the  option  of  having  the  time  extended  to  thirty- 
one  years,  on  giving  six  months'  notice,  and,  upon  having  pos- 
session on  July  25th  then  next,  to  pay  plaintiff  £,2']c^o^  and  take 
the  fixtures  at  a  valuation. 

Averment  of  plaintiff's  readiness  to  grant  the  lease.  Breach  ; 
refusal  to  accept  it,  and  to  take  the  fixtures  at  a  valuation  ; 
and  non-payment  of  the  ;£2i^o. 

The  second  count  alleged  the  plaintiff  to  be  entitled  to  a  cer- 
tain term,  to  wit,  a  term  of  thirty-two  years,  in  the  dwelling- 
house,  under  a  certain  contract  between  the  plaintiff  and 
Anthony  Hermon,  who  was  authorized  in  that  behalf  ;  and  then 
stated  the  agreement  with  the  defendant,  and  the  breach,  as 
before. 

The  third  count  alleged  plaintiff  to  be  possessed  for  the 
residue  of  a  certain  term,  to  expire  December  25th,  1856  ;  and 
the  agreement,  tender  of  lease  to  defendant,  and  breach,  as 
before. 

At  the  trial  before  Best,  C.J.,  London  sittings  after  Michael- 
mas Term,  it  appeared,  that  on  March  i8th,  1825,  the  plaintiff 
received  a  note  from  the  defendant  touching  the  premises  in 
these  terms  : 

"  Mr.  Grant's  Proposal. 

"  To  pay  a  premium  of  ^2750,  upon  receiving  a  lease  for 
twenty-one  years,  with  the  option  (upon  giving  six  months'  pre- 
vious notice  to  the  landlord  or  his  agent)  of  having  the  time 
extended  to  thirty-one  years,  paying  the  same  yearly  rent  as 
before,  for  such  extended  term  of  ten  years  beyond  twenty-one 
years.  Rent,  jQ'i^o. 

"  Mr.  Grant  to  pay  for  the  fixtures  at  a  valuation,  possession 
to  be  given  on  or  before  July  25th  next,  to  which  time  all  taxes 
and  outgoings  are  to  be  discharged  by  Mr.  Routledge  ;  and  a 
definitive  answer  to  be  given  within  six  weeks  from  March  i8th, 
1825." 


240  ROUTLEDGE   V.    GRANT.  [CHAP.  L 

The  plaintiff,  who  at  this  time  had  only  a  term  of  twelve 
years  in  the  premises,  had  to  apply  to  his  landlord  for  a  new 
lease,  before  he  was  in  a  condition  to  accept  the  defendant's 
offer.  The  plaintiff  having  come  to  an  understanding  with  his 
landlord,  wrote  the  following  note  to  the  defendant  : 

"  Mr,  Routledge  begs  to  say  that  he  accepts  Mr.  Grant's  offer 
for  his  house,  No.  59  St.  James's  Street,  and  that  he  will  give 
Mr.  Grant  possession  on  August  ist  next. 

"  St.  James's  Street,  April  6th,  1825. 

"  Mr.  R.  will  esteem  it  a  particular  favor  if  Mr.  Grant  will 
not,  for  the  present,  name  the  subject  to  any  one." 

The  defendant  returned  the  following  answer  : 

"  April  7,  1825. 

"  Sir  :  I  received  your  note  last  night,  and  hasten  to  ac- 
quaint you,  that  having  considered  as  confidential  the  negotia- 
tion respecting  your  house,  I  had  mentioned  it  to  no  one  ;  but 
upon  consulting  with  a  friend  this  morning,  in  whose  opinion 
I  have  more  confidence  than  my  own,  I  am  advised,  for  some 
reasons  which  had  not  occurred  to  myself,  not  to  think  of  taking 
a  house  in  St.  James's  Street  for  a  dwelling-house.  May  I 
therefore  request  you  to  permit  me  to  withdraw  the  proposal  I 
made  to  you  about  it  ?  I  am  in  hopes  you  will  make  no  hesita- 
tion to  do  this,  when  you  consider  the  spirit  of  candor  and  open- 
ness in  which  it  was  made  to  you.  But  should  it  be  otherwise, 
as  I  am  the  last  that  would  willingly  act  with  inconsistency, 
I  will  willingly  refer  the  question  to  friends  for  decision,  and 
abide  by  their  opinion  of  the  case. 

"  I  have  the  honor  to  be,  etc., 

'*  Alex.  Grant. 
"  Mr.  Thomas  Routledge.'' 

To  this  the  plaintiff  replied  as  follows  : 

"April  8,  1825. 

"  Sir  :  In  answer  to  your  letter  of  yesterday,  I  beg  to  state 
that,  relying  upon  your  performing  the  agreement  for  the  pur- 
chase of  my  house  in  St.  James's  Street,  I  have  taken  another 
house,  and  made  arrangements  which  1  cannot  without  great 
loss  relinquish.  I  hope,  therefore,  that  you  will  not  wish  me  to 
withdraw  it. 

"  I  am,  etc., 

"  Thos.  Routledge. 
"Alexander  Grant,  Esquire." 

The  defendant  rejoined  ; 


SEC,  I^.]  ROUTLEDGE   V.    GRANT.  24I 

"  April  9,  1825. 

"  Sir  :  Your  note  of  yesterday  surprised  me,  being  altogctlier 
at  variance  with  your  conversation  with  me  two  or  three  hours 
previous  to  your  note,  dated  on  the  evening  of  6th,  in  which, 
■you  must  recollect,  you  one  moment  declared  yourself  off  ;  and 
finally  you  went  away  to  have  the  opinion  of  Mrs.  Routledge 
about  the  answer  you  were  to  send  nie.  How,  therefore,  you 
can,  under  such  circumstances,  suffer  loss  and  inconvenience 
from  my  declining  to  proceed  further  in  the  treaty,  I  am  at  a 
loss  to  imagine  ;  and  I  was  in  hopes  you  would  have  been  satis- 
fied with  what  I  had  stated  in  reply  to  your  first  note,  to  have 
had  the  liberality  of  letting  the  matter  drop.  But  if  that  should 
not  be  your  intention,  I  have  only  to  add,  that  you  may  pro- 
ceed with  your  claim  for  '  loss  and  inconvenience  *  as  you  may 
think  most  advisable. 

"  I  am,  etc., 

"  Alex.  Grant. 
"'  Mr.  Thomas  Routledge." 

The  plaintiff  after  this  surrendered  the  existing  lease  to  his 
landlord,  and  obtained  from  him  a  new  one,  dated  April  21st, 
1825,  from  December  25th,  1824,  for  thirty-two  years,  for  the 
same  clear  yearly  rent  of  ;^25o,  payable  quarterly  ;  in  which 
the  covenants  on  the  part  of  the  lessee  were  similar  to  those  in 
the  former  ;  and  then  wrote  the  defendant  the  following  letter  : 

"  Sir  :  Upon  referring  to  my  letter  to  you  of  the  6th  instant, 
accepting  your  offer  for  my  house.  No.  59  St.  James's  Street, 
I  perceive  that  I,  by  mistake,  stated  that  I  would  give  posses- 
sion on  August  ist  next.  By  your  offer,  you  state  that  posses- 
sion is  to  be  given  on  or  before  July  25th  next  ;  and  I  inform 
you  that  I  am  ready  to  give  you  possession,  according  to  your 
proposal. 

"  I  am,  etc., 

"  Thos.  Routledge, 

"April  29th,  1825." 

This  letter,  on  the  day  it  was  dated,  was  delivered  at  the  de- 
fendant's house  ;  and  the  keys,  and  a  lease  of  the  premises  in 
question,  according  to  the  agreement,  were  tendered  to  him 
before  July  25th,  but  rejected. 

The  six  weeks,  from  March  i8th,  1825,  within  which,  by  the 
defendant's  proposal,  a  definitive  answer  was  to  be  given,  ex- 
pired on  May  ist,  1825. 

Upon  these  facts  it  was  objected,  first,  that  the  plaintiff  being 
allowed  six  weeks  to  accept  or  reject  the  defendant's  offer,  the 
defendant  was  entitled,  also,  until  it  was  accepted,  to  retract  it, 


242  ROUTLEDGE   V.   GRANT.  [CHAP.  I. 

at  any  period  before  the  expiration  of  the  six  weeks  ;  that  there 
was  no  acceptance  of  the  terms  proposed,  till  April  29th,  which 
came  too  late,  the  defendant  having  retracted  his  proposal  on 
the  9th.  Secondly,  that  the  plaintiff  had  not,  before  the  de- 
fendant withdrew  his  proposal,  any  such  interest  in  the  premises 
as  he  was  alleged  to  have  in  the  declaration,  or  as  would  have 
enabled  him  to  accede  to  that  proposal.  The  plaintiff  was 
thereupon  nonsuited,  with  leave  to  move  the  Court  to  set  the 
nonsuit  aside. 

Taddy  accordingly  obteined  a  rule  nisi  to  set  aside  this  non- 
suit, and 

Wilde  showed  cause. 

Taddy  and  Jones  in  support  of  the  rule. 

Best,  C.J.  The  nonsuit  was  right  on  both  grounds.  I  put 
it  on  the  same  footing  as  I  did  at  nisi prius.  Here  is  a  proposal 
by  the  defendant  to  take  property  on  certain  terms — namely, 
that  he  should  be  let  into  possession  in  July.  In  that  proposal 
he  gives  the  plaintiff  six  weeks  to  consider  ;  but  if  six  weeks  are 
given  on  one  side  to  accept  an  offer,  the  other  has  six  weeks  to 
put  an  end  to  it.  One  party  cannot  be  bound  without  the 
other.  This  was  expressly  decided  in  Cooke  v.  Oxley,'  where 
the  defendant  proposed  to  sell  at  a  certain  price,  tobacco  to  the 
plaintiff,  who  desired  to  have  till  four  in  the  afternoon  of  that 
'  Cooke  V.  Oxley  was  decided  in  1790,  and  is  reported  as  follows  in  3  T.  R. 

653: 

This  was  an  action  upon  the  case  ;  and  the  third  count  in  the  declaration, 
upon  which  the  verdict  was  taken,  stated  that  on,  etc.,  a  certain  discourse  was 
had,  etc.,  concerning  the  buying  of  266  hogsheads  of  tobacco  ;  and  on  that 
discourse  the  defendant  proposed  to  the  plaintiff  that  the  former  should  sell 
and  deliver  to  the  latter  the  said  266  hogsheads  [at  a  certain  price]  ;  where- 
upon the  plaintiff  desired  the  defendant  to  give  him  (the  plaintiff)  time  to 
agree  to  or  dissent  from  the  proposal  till  the  hour  of  four  in  the  afternoon 
of  that  day,  to  which  the  defendant  agreed  ;  and  thereupon  the  defendant 
proposed  to  the  plaintiff  to  sell  and  deliver  the  same  upon  the  terms  afore- 
said, if  the  plaiiitiff  would  agree  to  purchase  them  upon  the  ter7ns  afore- 
said, and  would  give  notice  thereof  to  the  defendant  before  the  hour  of 
four  in  the  afternoon  of  that  day  ;  the  plaintiff  averred  that  he  did  agree 
to  purchase  the  same  upon  the  terms  aforesaid,  and  did  give  notice  thereof 
to  the  defendant  before  the  hour  of  four  in  the  afternoon  of  that  day  ;  he 
also  averred  that  he  requested  the  defendant  to  deliver  to  him  the  said 
hogsheads,  and  offered  to  pay  to  the  defendant  the  said  price  for  the  same, 
yet  that  the  defendant  did  not,  etc. 

A  rule  having  been  obtained  to  show  cause  why  the  judgment  should  not 
be  arrested,  on  the  ground  that  there  was  no  consideration  for  the  defend- 
ant's promise. 

Erskine  and  Wood  now  showed  cause.  This  was  a  bargain  and  sale  on 
condition  ;  and  though  the  plaintiff  might  have  rescinded  the  contract 
before  4  o'clock,  yet  not  having  done  so,  the  condition  was  complied  with, 
and  both  parties  were  bound  by  the  agreement.     The  declaration  consid- 


I 


SEC.  I^.J  ROUTLEDGE  V.   GRANT.  243 

day  to  agree  to  or  dissent  from  the  proposal  ;  with  which  terms 
the  defendant  complied  ;  and  the  plaintiff  having  afterward 
sued  him  for  non-delivery  of  the  tobacco,  Lord  Kenyon  put  it 
on  the  true  ground,  by  saying,  "  At  the  time  of  entering  into 
this  contract  the  engagement  was  all  one  side  ;  the  other  party 
was  not  bound."  Buller,  J.,  said  :  "  It  has  been  argued  that 
this  must  be  taken  to  be  a  complete  sale  from  the  time  the  con- 
dition was  complied  with  ;  but  it  was  not  complied  with,  for  it 
is  not  stated  that  the  defendant  did  agree  at  4  o'clock  to  the 
terms  of  the  sale,  or  even  that  the  goods  were  kept  till  that 
time."  I  put  the  present  case  on  the  same  ground.  At  the 
time  of  entering  into  this  contract  the  engagement  was  all  on 
one  side.  In  Payne  v.  Cave,'  it  was  holden  that  the  defendant, 
who  had  bid  at  an  auction,  might  retract  his  bidding  any  time 
before  the  hammer  was  down,  and  the  Court  said  :  "  The 
auctioneer  is  the  agent  of  the  vendor,  and  the  assent  of  both 
parties  is  necessary  to  make  the  contract  binding  ;  that  is  sig- 
nified on  the  part  of  the  seller  by  knocking  down  the  hammer, 
which  was  not  done  here  till  the  defendant  had  retracted.  An 
auction  is  not  unaptly  called  locus pxnitenticB.  Every  bidding  is 
nothing  more  than  an  offer  on  one  side,  which  is  not  binding 
on  either  side  till  it  is  assented  to.  But,  according  to  what  is 
now  contended  for,  one  party  would  be  bound  by  the  offer,  and 
the  other  not,  which  can  never  be  allowed." 

These  cases  have  established  the  principle  on  which  I  decide 
— namely,  that,  till  both  parties  are  agreed,  either  has  a  right 
to  be  off.     The  case  of  Adams  v.  Lindsell  is  supposed  to  break 

ered  this  as  a  complete  bargain  and  sale  ;  for  the  breach  of  the  agreement 
is  for  not  delivering  the  tobacco,  and  not  for  not  selling  it. 

Lord  Kenyon,  C.J.  (stopping  Bearcrofi,  who  was  to  have  argued  in  sup- 
port of  the  rule).  Nothing  can  be  clearer  than  that  at  the  time  of  entering 
into  this  contract  the  engagement  was  all  on  one  side  ;  the  other  party  was 
not  bound  ;  it  was  therefore  mtdujii  pactum. 

Buller,  J.  It  is  impossible  to  support  this  declaration  in  any  point  of 
view.  In  order  to  sustain  a  promise,  there  must  be  either  a  damage  to  tne 
plaintiff,  or  an  advantage  to  the  defendant  ;  but  here  was  neither  when  the 
contract  was  first  made.  Then  as  to  the  subsequent  time,  the  promise  can 
only  be  supported  on  the  ground  of  a  new  contract  made  at  4  o'clock  ;  but 
there  is  no  pretence  for  that.  It  has  been  argued  that  this  must  be  taken 
to  be  a  complete  sale  from  the  time  when  the  condition  was  complied  with  ; 
but  it  was  not  complied  with,  for  it  is  not  stated  that  the  defendant  did 
agree  at  4  o'clock  to  the  terms  of  the  sale  ;  or  even  that  the  goods  were  kept 
till  that  time. 

Grose,  J.  The  agreement  was  not  binding  on  the  plaintiff  before 
4  o'clock  ;  and  it  is  not  stated  that  the  parties  came  to  any  subsequent  agree- 
ment ;  there  is  therefore  no  consideration  for  the  promise. 

Rule  absolute. — Ed. 

'  3  T.  R.  148. 


244  ROUTLEDGE   V.    GRANT.  [CHAP.  I. 

in  on  them  ;  but  I  think  it  does  not,  because  the  Court  put  it 
on  the  circumstance  that  the  offer  was  made  by  the  post,  and 
say  :  "  If  the  defendants  were  not  bound  by  their  offer  when 
accepted  by  the  plaintiffs,  till  the  answer  was  received,  then  the 
plaintiffs  ought  not  to  be  bound  till  after  they  had  received  the 
notification  that  the  defendants  had  received  their  answer  and 
assented  to  it.  And  so  it  might  go  on  ad  injimtum.  The  de- 
fendants must  be  considered  in  law  as  making  during  every  in- 
stant of  the  time  their  letter  was  travelling  the  same  identical 
offer  to  the  plaintiffs  ;  and  then  the  contract  is  completed  by 
the  acceptance  of  it  by  the  latter."  If  they  are  to  be  consid- 
ered as  making  the  offer  till  it  is  accepted,  the  other  may  say, 
"  make  no  further  offer,  because  I  shall  not  accept  it  ;"  and  to 
place  them  on  an  equal  footing,  the  party  who  offers  should 
have  the  power  of  retracting  as  well  as  the  other  of  rejecting  ; 
therefore  I  cannot  bring  myself  to  admit  that  a  man  is  bound 
when  he  says,  "  I  will  sell  you  goods  upon  certain  terms,  re- 
ceiving your  answer  in  course  of  post."  However,  it  is  not 
necessary  to  touch  that  decision,  for  the  reasoning  of  the  Court 
coincides  with  the  principle  on  which  we  now  determine.  As 
the  defendant  repudiated  the  contract  on  April  9th,  before  the 
expiration  of  the  six  weeks,  he  had  a  right  to  say  that  the  plain- 
tiff should  not  enforce  it  afterward. 

But  upon  the  question  of  variance,  we  are  all  of  opinion  that 
none  of  the  counts  apply.  It  is  not  necessary,  perhaps,  that 
the  termini  of  the  plaintiff's  lease  should  be  set  out  with  pre- 
cision ;  but  the  variance  is  fatal,  if  the  plaintiff  has  not,  at  least, 
an  interest  which  will  enable  him  to  perform  his  contract.  The 
variance  is  not  in  words,  but  in  substance.  The  plaintiff  had 
no  such  term  as  that  stated  in  the  first  and  third  counts.  In 
the  second,  he  states  he  had  a  contract  for  a  lease  ;  such  a  con- 
tract, to  be  valid,  must  be  in  writing,  and  he  cannot  be  said  to 
have  had  it  unless  he  had  it  in  writing.  But  there  was  no  evi- 
dence of  any  such  contract  ;  and,  therefore,  upon  both  grounds, 
the  rule  must  be  discharged. 

BuRROUGH,  J.,'  coincided  in  discharging  the  rule  on  the 
ground  of  variance. 

Gaselee,  J.  If  this  case  had  rested  on  the  first  point,  I 
should  have  wished  for  time  to  consider  it,  but  on  the  ground 
of  variance  I  have  no  doubt  that  this  rule  must  be  discharged. 

'  Park,  J.,  was  absent  at  chambers. 


SEC.  I^.]  BOSTON   &   MAINE    R.    R.    V.    RARTLETT.  245 


THE     BOSTON    &    MAINE     RAILROAD    v.    BARTLETT 

AND  Another. 

In  the  Supreme  Judicial  Court  of   Massachusetts,   March 

Term,  1849. 

[Reporifd  in  3  Cushing  224.] 

This  was  a  bill  in  equity  for  the  specific  performance  of  a 
contract  in  writing. 

The  plaintiffs  alleged  that  the  defendants  on  April  ist,  1844, 
being  the  owners  of  certain  land  situated  in  Boston,  and  par- 
ticularly described  in  the  bill,  "  in  consideration  that  said  cor- 
poration would  take  into  consideration  the  expediency  of  buying 
said  land  for  their  use  as  a  corporation,  signed  a  certain  writ- 
ing, dated  April  ist,  1844,"  whereby  they  agreed  to  convey  to 
the  plaintiffs  "  the  said  lot  of  land,  for  the  sum  of  $20,000,  if 
the  said  corporation  would  take  the  same  within  thirty  days 
from  that  date  ;"  that  afterward  and  within  the  thirty  days, 
the  defendants,  at  the  request  of  the  plaintiffs,  "  and  in  consid- 
eration that  the  said  corporation  agreed  to  keep  in  consideration 
the  expediency  of  taking  said  land,"  etc.,  extended  the  said 
term  of  thirty  days,  by  a  writing  underneath  the  written  con- 
tract above  mentioned,  for  thirty  days  from  the  expiration 
thereof  ;  that,  on  May  29th,  1844,  while  the  extended  contract 
was  in  full  force,  and  unrescinded,  the  plaintiffs  elected  to  take 
the  land  on  the  terms  specified  in  the  contract,  and  notified  the 
defendants  of  their  election,  and  offered  to  pay  them  the  agreed 
price  (producing  the  same  in  money)  for  a  conveyance  of  the 
land,  and  requested  the  defendants  to  execute  a  conveyance 
thereof,  which  the  plaintiffs  tendered  to  them  for  that  purpose  ; 
and  that  the  defendants  refused  to  execute  such  conveyance,  or 
to  perform  the  contract,  and  had  ever  since  neglected  and  re- 
fused to  perform  the  same. 

The  defendants  demurred  generally. 

J.  P.  Healy  for  the  defendants. 

G.  Minot  (with  whom  was  R.  Choate)  for  the  plaintiffs. 

Fletcher,  J.'  In  support  of  the  demurrer,  in  this  case,  the 
only  ground  assumed  and  insisted  on  by  the  defendants  is,  that 
the  agreement  on  their  part  was  without  consideration,  and 
therefore  not  obligatory.  In  the  view  taken  of  the  case  by  the 
Court,  no  importance  is  attached  to  the  consideration  set  out 
in  the  bill — namely,  "  that  the  plaintiffs  would  take  into  con- 

>  Wilde,  J.,  did  not  sit  in  this  case. 


246  BOSTON   &   MAINE   R.    R.   V.   BARTLETT.        [CHAP.  L 

sideration  the  expediency  of  buying  the  land."  The  argument 
for  the  defendants,  that  their  agreement  was  not  binding,  be- 
cause without  consideration,  erroneously  assumes  that  the  writ- 
ing executed  by  the  defendants  is  to  be  considered  as  consti- 
tuting a  contract  at  the  time  it  was  made.  The  decision  of  the 
Court  in  Maine  in  the  case  of  Bean  v.  Burbank,  4  Shepl.  458, 
which  was  referred  to  for  the  defendants,  seems  to  rest  on  the 
ground  assumed  by  them  in  this  case. 

In  the  present  case,  though  the  writing  signed  by  the  defend- 
ants was  but  an  offer,  and  an  offer  which  might  be  revoked,  yet 
while  it  remained  in  force  and  unrevoked,  it  was  a  continuing 
offer  during  the  time  limited  for  acceptance  ;  and,  during  the 
whole  of  that  time,  it  was  an  offer  every  instant,  but  as  soon 
as  it  was  accepted,  it  ceased  to  be  an  offer  merely,  and  then 
ripened  into  a  contract.  The  counsel  for  the  defendants  is 
most  surely  in  the  right,  in  saying  that  the  writing  when  made 
was  without  consideration,  and  did  not  therefore  form  a  con- 
tract. It  was  then  but  an  offer  to  contract,  and  the  parties 
making  the  offer  most  undoubtedly  might  have  withdrawn  it  at 
any  time  before  acceptance. 

But  when  the  offer  was  accepted,  the  minds  of  the  parties 
met,  and  the  contract  was  complete.  There  was  then  the  meet- 
ing of  the  minds  of  the  parties,  which  constitutes  and  is  the 
definition  of  a  contract.  The  acceptance  by  the  plaintiffs  con- 
stituted a  sufficient  legal  consideration  for  the  engagement  on 
the  part  of  the  defendants.  There  was  then  nothing  wanting, 
in  order  to  perfect  a  valid  contract  on  the  part  of  the  defend- 
ants. It  was  precisely  as  if  the  parties  had  met  at  the  time  of 
the  acceptance,  and  the  offer  had  then  been  made  and  accepted 
and  the  bargain  completed  at  once. 

A  different  doctrine,  however,  prevails  in  France  and  Scotland 
and  Holland.  It  is  there  held  that  whenever  an  offer  is  made, 
granting  to  a  party  a  certain  time  within  which  he  is  to  be 
entitled  to  decide,  whether  he  will  accept  it  or  not,  the  party 
making  such  offer  is  not  at  liberty  to  withdraw  it  before  the 
lapse  of  the  appointed  time.  There  are  certainly  very  strong 
reasons  in  support  of  this  doctrine.  Highly  respectable  authors 
regard  it  as  inconsistent  with  the  plain  principles  of  equity, 
that  a  person,  who  has  been  induced  to  rely  on  such  an  engage- 
ment, should  have  no  remedy  in  case  of  disappointment.  But 
whether  wisely  and  equitably  or  not,  the  common  law  unyield- 
ingly insists  upon  a  consideration,  or  a  paper  with  a  seal 
attached. 

The  authorities,  both  English  and  American,  in  support  of 
this  view  of  the  subject,  are  very  numerous  and  decisive  ;  but 


SEC.  I^.]  OFFORD   1'.    DAVIES   AND   ANOTHER.  247 

it  is  not  deemed  to  be  needful  or  expedient  to  refer  particularly 
to  ihem,  as  they  are  collected  and  commented  on  in  several  re- 
ports as  well  as  in  the  text-books.  The  case  of  Cooke  v.  Oxley, 
3  T.  R.  653,  in  which  a  different  doctrine  was  held,  has  occa- 
sioned considerable  discussion,  and  in  one  or  two  instances  has 
probably  influenced  the  decision.  That  case  has  been  supposed 
to  be  inaccurately  reported,  and  that  in  fact  there  was  in  that 
case  no  acceptance.  But  however  that  may  be,  if  the  case  has 
not  been  directly  overruled,  it  has  certainly  in  later  cases  been 
entirely  disregarded,  and  cannot  now  be  considered  as  of  any 
authority. 

As  therefore  in  the  present  case  the  bill  sets  out  a  proposal  in 
writing,  and  an  acceptance  and  an  offer  to  perform,  on  the  part 
of  the  plaintiffs,  within  the  time  limited,  and  while  the  offer  was 
in  full  force,  all  which  is  admitted  by  the  demurrer,  so  that  a 
valid  contract  in  writing  is  shown  to  exist,  the  demurrer  must 
be  overruled. 


OFFORD  V.   DAVIES  and  Another. 

In  the  Common  Pleas,  June  2,  1862. 

\^Reported  m  12  Coni?non  Benc/i,  New  Series,  748.] 

This  was  an  action  upon  a  guarantee. 

The  first  count  of  the  declaration  stated  that,  by  a  certain 
instrument  in  writing  signed  by  the  defendants,  and  addressed 
and  delivered  by  the  defendants  to  the  plaintiff,  the  defendants 
undertook,  promised,  and  agreed  with  the  plaintiff  in  the  words 
and  figures  following — that  is  to  say  :  "  We,  the  undersigned, 
in  consideration  of  your  discounting,  at  our  request,  bills  of 
exchange  for  Messrs.  Davies  &  Co.,  of  Newtown,  Montgomery- 
shire, drapers,  hereby  jointly  and  severally  guaranty  for  the 
space  of  twelve  calendar  months  the  due  payment  of  all  such  bills 
of  exchange,  to  the  extent  of  ^600.  And  we  further  jointly 
and  severally  undertake  to  make  good  any  loss  or  expenses  you 
may  sustain  or  incur  in  consequence  of  advancing  Messrs. 
Davies  &  Co.  such  moneys."  Averment,  that  the  plaintiff,  rely- 
ing on  the  said  promise  of  the  defendants,  after  the  making  of 
the  said  promise,  and  within  the  space  of  twelve  calendar 
months  thereafter,  did  discount  divers  bills  of  exchange  for  the 
said  Messrs.  Davies  &  Co.,  of  Newtown  aforesaid,  certain  of 
which  bills  of  exchange  became  due  and  payable  before  the 
commencement  of  this  suit,  but  were  not  then  or  at  any  other 
time  duly   paid,    and   the  said  bills    respectively  were    dishon- 


248  OFFORD   V.    DAVIES   AND   ANOTHER.  [cHAP.  L 

ored  ;  and  that  the  plaintiff,  after  the  making  of  the  said  prom- 
ise, and  within  the  said  twelve  calendar  months,  advanced  to 
the  said  Messrs.  Davies  &  Co.  divers  sums  of  money  on  and  in 
respect  of  the  discount  of  the  said  last-mentioned  bills  so  dis- 
honored as  aforesaid,  certain  of  which  moneys  were  due  and 
owing  to  the  plaintiff  before  and  at  the  time  of  the  commence- 
ment of  this  suit  ;  and  that  all  things  had  happened  and  all 
times  had  elapsed  necessary,  etc.;  yet  that  the  defendants  broke 
their  said  promise,  and  did  not  pay  to  the  plaintiff  or  to  the  re- 
spective holders  for  the  time  being  of  the  said  bills  of  exchange 
so  dishonored  as  aforesaid,  or  to  any  other  person  entitled  to 
receive  the  same,  the  respective  sums  of  money  payable  by  the 
said  bills  of  exchange  ;  nor  did  the  defendants  pay  to  the 
plaintiff  the  said  sums  of  money  so  advanced  by  the  plaintiff  as 
aforesaid,  or  any  part  thereof  ;  whereby  the  sums  payable  by 
the  said  bills  of  exchange  so  dishonored  as  aforesaid  became 
lost  to  the  plaintiff,  and  he  became  liable  to  pay  and  take  up 
certain  of  the  said  bills  of  exchange,  and  did  pay  and  take  up 
certain  of  the  said  bills  of  exchange,  and  was  forced  and  obliged 
to  and  did  expend  certain  moneys  in  endeavoring  to  obtain  part 
of  certain  of  the  said  bills  of  exchange,  and  the  plaintiff  lost  the 
interest  which  he  might  have  made  of  his  moneys  if  the  said 
bills  had  been  duly  paid  at  maturity. 

Fourth  plea  to  the  first  count — so  far  as  the  same  relates  to 
the  sums  payable  by  the  defendants  in  respect  of  the  sums  of 
money  payable  by  the  said  bills  of  exchange  and  the  said  sums 
so  advanced — that,  after  the  making  of  the  said  guarantee,  and 
before  the  plaintiff  had  discounted  such  bills  of  exchange,  and 
before  he  had  advanced  such  sums  of  money,  the  defendants 
countermanded  the  said  guarantee,  and  requested  the  plaintiff 
not  to  discount  such  bills  of  exchange,  and  not  to  advance  such 
moneys. 

To  this  plea  the  plaintiff  demurred,  the  ground  of  demurrer 
stated  in  the  margin  being,  "  that  the  fourth  plea  offers  no  de- 
fence to  that  part  of  the  declaration  to  which  it  is  pleaded,  for 
that  a  party  giving  a  guarantee  [for  a  definite  period]  has  no 
power  to  countermand  it  without  the  assent  of  the  person  to 
whom  it  is  given."     Joinder. 

Prentice  (with  whom  was  Brandt),  in  support  of  the  demurrer. 

IL.  James,  Q.C.  (with  whom  was  T.  Jones)  contra. 

Erle,  C.J.,  now  delivered  the  judgment  of  the  Court.* 

The  declaration  alleged  a  contract  by  the  defendants,  in  con- 
sideration that  the  plaintiff  would  at  the  request  of  the  defend- 

^  The  case  was  argued  before  Erie,  C.J.,  Williams,  J.,  Willes,  J.,  and 
Byles,  J. 


SEC.  I^'.]  SHUEV   z:    UNITED    STATES.  249 

ants  discount  bills  for  Davies  &  Co.,  not  exceeding  ^600,  the 
defendants  promised-  to  guaranty  the  repayment  of  such  dis- 
counts/)?/' tivelve  months,  and  the  discount,  and  no  repayment. 
The  plea  was,  a  revocation  of  the  promise  before  the  discount 
in  question  ;  and  the  demurrer  raises  the  question  whether  the 
defendants  had  a  right  to  revoke  the  promise.  We  are  of  opin- 
ion that  they  had,  and  that  consequently  the  plea  is  good. 

This  promise  by  itself  creates  no  obligation.  It  is  in  effect 
)  conditioned  to  be  binding  if  the  plaintiff  acts  upon  it,  either  to 
the  benefit  of  the  defendants,  or  to  the  detriment  of  himself. 
But,  until  the  condition  has  been  at  least  in  part  fulfilled,  the 
defendants  have  the  power  of  revoking  it.  In  the  case  of  a 
simple  guarantee  for  a  proposed  loan,  the  right  of  revocation 
before  the  proposal  has  been  acted  on  did  not  appear  to  be  dis- 
puted. Then,  are  the  rights  of  the  parties  affected  either  by 
the  promise  being  expressed  to  be  for  twelve  months,  or  by  the 
fact  that  some  discounts  had  been  made  before  that  now  in 
question,  and  repaid  ?     We  think  not. 

The  promise  to  repay  for  twelve  months  creates  no  additional 
liability  on  the  guarantor,  but,  on  the  contrary,  fixes  a  limit  in 
time  beyond  which  his  liability  cannot  extend.  And,  with  re- 
spect to  other  discounts,  which  had  been  repaid,  we  consider 
each  discount  as  a  separate  transaction,  creating  a  liability  on 
the  defendant  till  it  is  repaid,  and,  after  repayment,  leaving  the 
promise  to  have  the  same  operation  that  it  had  before  any  dis- 
count was  made,  and  no  more. 

Judgment  for  the  defendants. 


SHUEY,  Executor,  v.  UNITED    STATES. 

In    the    Supreme    Court    of    the    United    States,   October 

Term,  1875. 

\^Reported  in  92  United  States  Reports  73.  J 

Appeal  from  the  Court  of  Claims. 

Henry  B.  Ste.  Marie  filed  his  petition  in  the  Court  of  Claims 
to  recover  the  sum  of  $15,000,  being  the  balance  alleged  to  be 
due  him  of  the  reward  of  $25,000  offered  by  the  Secretary  of 
War,  on  April  20th,  1865,  for  the  apprehension  of  John  H.  Surratt, 
one  of  Booth's  alleged  accomplices  in  the  murder  of  President 
Lincoln. 

The  Court  below  found  the  facts  as  follows  : 

I.  On    April    20th,    1865,    the   Secretary   of   War  issued,    and 


250  SHUEY   V.    UNITED    STATES.  [CHAP.  I. 

caused  to  be  published  in  the  public  newspapers  and  otherwise, 
a  proclamation,  whereby  he  announced  that  there  would  be 
paid  by  the  War  Department  "  for  the  apprehension  of  John  H. 
Surratt,  one  of  Booth's  accomplices,"  $25,000  reward,  and  also 
that  "  liberal  rewards  will  be  paid  for  any  information  that 
shall  conduce  to  the  arrest  of  either  of  the  above-named  crim- 
inals or  their  accomplices  ;"  and  such  proclamation  was  not 
limited  in  terms  to  any  specific  period,  and  it  was  signed 
"  Edwin  M.  Stanton,  Secretary  of  War."  On  November  24th, 
1865,  the  President  caused  to  be  published  his  order  revoking 
the  reward  offered  for  the  arrest  of  John  H.  Surratt.  13  Stat.  778. 
2.  In  April,  1866,  John  H.  Surratt  was  a  zouave  in  the  mili- 
tary service  of  the  Papal  Government,  and  the  claimant  was  also 
a  zouave  in  the  same  service.  During  that  month  he  communi- 
cated to  Mr.  King,  the  American  Minister  at  Rome,  the  fact 
that  he  had  discovered  and  identified  Surratt,  who  had  con- 
fessed to  him  his  participation  in  the  plot  against  the  life  of 
President  Lincoln.  The  claimant  also  subsequently  communi- 
cated further  information  to  the  same  effect,  and  kept  watch, 
at  the  request  of  the  American  Minister,  over  Surratt,  There- 
upon certain  diplomatic  correspondence  passed  between  the 
Government  of  the  United  States  and  the  Papal  Government 
relative  to  the  arrest  and  extradition  of  Surratt  ;  and  on  Novem- 
ber 6th,  1866,  the  Papal  Government,  at  the  request  of  the 
United  States,  ordered  the  arrest  of  Surratt,  and  that  he  be 
brought  to  Rome,  he  then  being  at  Veroli.  Under  this  order 
of  the  Papal  Government,  Surratt  was  arrested  ;  but,  at  the 
moment  of  leaving  prison  at  Veroli,  he  escaped  from  the  guard 
having  him  in  custody,  and,  crossing  the  frontier  of  the  Papal 
territory,  embarked  at  Naples,  and  escaped  to  Alexandria  in 
Egypt.  Immediately  after  his  escape,  and  both  before  and 
after  his  embarkation  at  Naples,  the  American  Minister  at 
Rome,  being  informed  of  the  escape  by  the  Papal  Government, 
took  measures  to  trace  and  rearrest  him,  which  was  done  in 
Alexandria.  From  that  place  he  was  subsequently  conveyed 
by  the  American  Government  to  the  United  States  ;  but  the 
American  Minister,  having  previously  procured  the  discharge 
of  the  claimant  from  the  Papal  military  service,  sent  him  for- 
ward to  Alexandria  to  identify  Surratt.  At  the  time  of  the  first 
interview  between  the  claimant  and  the  American  Minister,  and 
at  all  subsequent  times  until  the  final  capture  of  Surratt,  they 
were  ignorant  of  the  fact  that  the  reward  offered  by  the  Secre- 
tary of  War  for  his  arrest  had  been  revoked  by  the  President. 
The  discovery  and  arrest  of  Surratt  were  due  entirely  to  the  dis- 
closures made  by   the  claimant  to   the  American   Minister  at 


SEC.  I^.]  SHUEV   V.    UNITED    STATES.  2$  I 

Rome  ;  but  the  arrest  was  not  made  by  the  claimant,  either  at 
Veroli,  or  subsequently  at  Alexandria. 

3.  There  has  been  paid  to  the  claimant  by  the  defendants, 
under  the  Act  of  July  27th,  1S68  (15  Stat.  234,  §  3),  the  sum  of 
^10,000.  Such  payment  was  made  by  a  draft  on  the  Treasury 
payable  to  the  order  of  the  claimant,  which  draft  was  by  him 
duly  indorsed. 

The  Court  found  as  a  matter  of  law  that  the  claimant's  ser- 
vice, as  set  forth  in  the  foregoing  findings,  did  not  constitute 
an  arrest  of  Surratt  within  the  meaning  of  the  proclamation, 
but  was  merely  the  giving  of  information  which  conduced  to 
the  arrest.  For  such  information  the  remuneration  allowed  to 
him  under  the  Act  of  Congress  was  a  full  satisfaction,  and  dis- 
charges the  defendants  from  all  liability. 

The  petition  was  dismissed  accordingly,  whereupon  an  appeal 
was  taken  to  this  Court. 

Ste.  Marie  having  died  pendente  lite,  his  executor  was  substi- 
tuted in  his  stead. 

D.  B.  Meany  and  F.  Carroll  Brewster  for  the  appellant. 

Assistant  Attorney-General  Edivin  B.  Smith,  contra. 

Strong,  J.,  delivered  the  opinion  of  the  Court. 

We  agree  with  the  Court  of  Claims,  that  the  service  rendered 
by  the  plaintiff's  testator  was,  not  the  apprehension  of  John  H. 
Surratt,  for  which  the  War  Department  had  offered  a  reward  of 
$25,000,  but  giving  information  that  conduced  to  the  arrest. 
These  are  quite  distinct  things,  though  one  may  have  been  a 
consequence  of  the  other.  The  proclamation  of  the  Secretary 
of  War  treated  them  as  different  ;  and,  while  a  reward  of 
$25,000  was  offered  for  the  apprehension,  the  offer  for  informa- 
tion w^as  only  a  "  liberal  reward."  The  findings  of  the  Court 
of  Claims  also  exhibit  a  clear  distinction  between  making  tlie 
arrest  and  giving  the  information  that  led  to  it.  It  is  found  as 
a  fact,  that  the  arrest  was  not  made  by  the  claimant,  though  the 
discovery  and  arrest  were  due  entirely  to  the  disclosures  made 
by  him.  The  plain  meaning  of  this  is,  that  Surratt's  apprehen- 
sion was  a  consequence  of  the  disclosures  made.  But  the  con- 
sequence of  a  man's  act  are  not  his  acts.  Between  the  conse- 
quence and  the  disclosure  that  leads  to  it  there  may  be,  and  in 
this  case  there  were,  intermediate  agencies.  Other  persons 
than  the  claimant  made  the  arrest — persons  who  were  not  his 
agents,  and  who  themselves  were  entitled  to  the  proffered  re- 
ward for  his  arrest,  if  any  persons  were.  We  think,  therefore, 
that  at  most  the  claimant  was  entitled  to  the  "  liberal  reward" 
promised  for  information  conducing  to  the  arrest  ;  and  that 
reward  he  has  received. 


252  DICKINSON   V.   DODDS.  [CHAP.  I. 

But,  if  this  were  not  so,  the  judgment  given  by  the  Court  of 
Claims  is  correct. 

The  offer  of  a  reward  for  the  apprehension  of  Surratt  was 
revoked  on  November  24th,  1865  ;  and  notice  of  the  revocation 
was  published.  It  is  not  to  be  doubted  that  the  offer  was  revo- 
cable at  any  time  before  it  was  accepted,  and  before  anything 
had  been  done  in  reliance  upon  it.  There  was  no  contract  until 
its  terms  were  complied  with.  Like  any  other  offer  of  a  con- 
tract, it  might,  therefore,  be  withdrawn  before  rights  had 
accrued  under  it  ;  and  it  was  withdrawn  through  the  same 
channel  in  which  it  was  made.  The  same  notoriety  was  given 
to  the  revocation  that  was  given  to  the  offer  ;  and  the  findings 
of  fact  do  not  show  that  any  information  was  given  by  the 
claimant,  or  that  he  did  anything  to  entitle  him  to  the  reward 
offered,  until  five  months  after  the  offer  had  been  withdrawn. 
True,  it  is  found  that  then,  and  at  all  times  until  the  arrest  was 
actually  made,  he  was  ignorant  of  the  withdrawal  ;  but  that  is 
an  immaterial  fact.  The  offer  of  the  reward  not  having  been 
made  to  him  directly,  but  by  means  of  a  published  proclama- 
tion, he  should  have  known  that  it  could  be  revoked  in  the 
manner  in  which  it  was  made. 

Judgment  affirmed. 

DICKINSON  V.  DODDS. 

In  the  Court  of  Appeal,  April   i,  1876. 

[Reported  in  Law  Reports,  2  Chancery  Division  463.] 

On  Wednesday,  June  loth,  1874,  the  defendant,  John  Dodds, 
signed  and  delivered  to  the  plaintiff,  George  Dickinson,  a  memo- 
randum, of  which  the  material  part  was  as  follows  : 

"  I  hereby  agree  to  sell  to  Mr.  George  Dickinson  the  whole 
of  the  dwelling-houses,  garden  ground,  stabling,  and  outbuild- 
ings thereto  belonging,  situate  at  Croft,  belonging  to  me,  for 
the  sum  of  ;^8oo.  As  witness  my  hand  this  tenth  day  of  June, 
1874. 

"^800.  (Signed)  John  Dodds." 

"  P.S. — This  offer  to  be  left  over  until  Friday,  9  o'clock  a.m. 
J,  D.  (the  twelfth),  12th  June,  1874. 

(Signed)  "J.  Dodds." 

The  bill  alleged  that  Dodds  understood  and  intended  that 
the  plaintiff  should  have  until  Friday  9  a.m.  within  which  to 
determine  whether  he  would  or  would  not  purchase,  and  that 


SEC.   I^.J  DICKINSON    V.    DODDS.  253 

he  should  absolutely  have  until  that  time  the  refusal  of  the 
property  at  the  price  of  ^800,  and  that  the  plaintiff,  in  fact, 
determined  to  accept  tlie  offer  on  the  morning  of  Thursday, 
June  nth,  but  did  not  at  once  signify  his  acceptance  to  Dodds, 
.believing  that  he  had  the  power  to  accept  it  until  9  a.m.  on  the 
Friday. 

In  the  afternoon  of  the  Thursday  the  plaintiff  was  informed 
by  a  Mr.  Berry  that  Dodds  had  been  offering  or  agreeing  to  sell 
the  property  to  Thomas  Allan,  the  other  defendant.  There- 
upon the  plaintiff,  at  about  half-past  seven  in  the  evening,  went 
to  the  house  of  Mrs.  Burgess,  the  mother-in-law  of  Dodds, 
where  he  was  then  staying,  and  left  with  her  a  formal  accept- 
ance in  writing  of  the  offer  to  sell  the  property.  According  to 
the  evidence  of  Mrs.  Burgess,  this  document  never  in  fact  reached 
Dodds,  she  having  forgotten  to  give  it  to  him. 

On  the  following  (Friday)  morning,  at  about  seven  o'clock, 
Berry,  who  was  acting  as  agent  for  Dickinson,  found  Dodds  at 
the  Darlington  railway  station,  and  handed  to  him  a  duplicate 
of  the  acceptance  by  Dickinson,  and  explained  to  Dodds  its 
purport.  He  replied  that  it  was  too  late,  as  he  had  sold  the 
property.  A  few  minutes  later  Dickinson  himself  found  Dodds 
entering  a  railway  carriage,  and  handed  him  another  duplicate 
of  the  notice  of  acceptance,  but  Dodds  declined  to  receive  it, 
saying,  "  You  are  too  late.      I  have  sold  the  property." 

It  appeared  that  on  the  day  before,  Thursday,  June  nth, 
Dodds  had  signed  a  formal  contract  for  the  sale  of  the  property 
to  the  defendant  Allan  for  ^800,  and  had  received  from  him  a 
deposit  of  ^40. 

The  bill  in  this  suit  prayed  that  the  defendant  Dodds  might 
be  decreed  specifically  to  perform  the  contract  of  June  loth, 
1874  ;  that  he  might  be  restrained  from  conveying  the  property 
to  Allan  ;  that  Allan  might  be  restrained  from  taking  any  such 
conveyance  ;  that,  if  any  such  conveyance  /lad  been  or  should 
be  made,  Allan  might  be  declared  a  trustee  of  the  property  for, 
and  might  be  directed  to  convey  the  property  to,  the  plaintiff  ; 
and  for  damages. 

The  cause  came  on  for  hearing  before  Vice-Chancellor  Bacon 
on  January  25th,  1876. 

Kay,  Q.C.,  and  Caldecott  for  the  plaintiff. 

Swanstflu,  Q.C.,  and  Crossley  for  the  defendant  Dodds, 

Jackson,  Q.C.,  and  Gazdar  for  the  defendant  Allan. 

Bacon,  V.C,  after  remarking  that  the  case  involved  no  ques- 
tion of  unfairness  or  inequality,  and  after  stating  the  terms  of 
the  document  of  June  loth,  1874,  and  the  statement  of  the 
defendant's  case  as  given  in  his  answer,  continued  : 


254  DICKINSON   V.    DODDS.  [CHAP.  I. 

I  consider  that  to  be  one  agreement,  and  I  think  the  terms  of 
the  agreement  put  an  end  to  any  question  of  nudum  pactuvi.  I 
think  the  inducement  for  the  plaintiff  to  enter  into  the  contract 
was  the  defendant's  compliance  with  the  plaintiff's  request  that 
there  should  be  some  time  allowed  to  him  to  determine  whether 
he  would  accept  it  or  not.  But  whether  the  letter  is  read  with 
or  without  the  postscript,  it  is,  in  my  judgment,  as  plain  and 
clear  a  contract  for  sale  as  can  be  expressed  in  words,  one  of 
the  terms  of  that  contract  being  that  the  plaintiff  shall  not  be 
called  upon  to  accept,  or  to  testify  his  acceptance  until  9  o'clock 
on  the  morning  of  June  12th.  I  see,  therefore,  no  reason  why 
the  Court  should  not  enforce  the  specific  performance  of  the 
contract,  if  it  finds  that  all  the  conditions  have  been  complied 
with. 

Then  what  are  the  facts  ?  It  is  clear  that  a  plain,  explicit 
acceptance  of  the  contract  was,  on  Thursday,  June  nth,  deliv- 
ered by  the  plaintiff  at  the  place  of  abode  of  the  defendant,  and 
ought  to  have  come  to  his  hands.  Whether  it  came  to  his 
hands  or  not,  the  fact  remains  that,  within  the  time  limited,  the 
plaintiff  did  accept  and  testify  his  acceptance.  From  that 
moment  the  plaintiff  was  bound,  and  the  defendant  could  at 
any  time,  notwithstanding  Allan,  have  filed  a  bill  against  the 
plaintiff  for  the  specific  performance  of  the  contract  which  he 
had  entered  into,  and  which  the  defendant  had  accepted. 

I  am  at  a  loss  to  guess  upon  what  ground  it  can  be  said  that 
it  is  not  a  contract  which  the  Court  will  enforce.  It  cannot  be 
on  the  ground  that  the  defendant  had  entered  into  a  contract 
with  Allan,  because,  giving  to  the  defendant  all  the  latitude 
which  can  be  desired,  admitting  that  he  had  the  same  time  to 
change  his  mind  as  he,  by  the  agreement,  gave  to  the  plaintiff 
— the  law,  I  take  it,  is  clear  on  the  authorities,  that  if  a  con- 
tract, unilateral  in  its  shape,  is  completed  by  the  acceptance  of 
the  party  on  the  other  side,  it  becomes  a  perfectly  valid  and 
binding  contract.  It  may  be  withdrawn  from  by  one  of  the 
parties  in  the  mean  time,  but,  in  order  to  be  withdrawn  from, 
information  of  that  fact  must  be  conveyed  to  the  mind  of  the 
person  who  is  to  be  affected  by  it.  It  will  not  do  for  the  de- 
fendant to  say,  "  I  made  up  my  mind  that  I  would  withdraw, 
but  I  did  not  tell  the  plaintiff  ;  I  did  not  say  anything  to  the 
plaintiff  until  after  he  had  told  me  by  a  written  notice  and  with 
a  loud  voice  that  he  accepted  the  option  which  had  been  left  to 
him  by  the  agreement."  In  my  opinion,  after  that  hour  on 
Friday,  earlier  than  9  o'clock,  when  the  plaintiff  and  defendant 
met,  if  not  before,  the  contract  was  completed,  and  neithir 
party  could  retire  from  it. 


SEC.  1^.]  DICKINSON   V.    DODDS.  255 

It  is  said  that  the  authorities  justify  the  defendant's  conten- 
tion that  he  is  not  bound  to  perform  this  agreement,  and  the 
case  of  Cooke  v.  Oxley'  was  referred  to.  But  I  find  that  the 
judgment  in  Cooke  v.  Oxley  went  solely  upon  the  pleadings. 
It  was  a  rule  to  show  cause  why  judgment  should  not  be 
arrested,  therefore  it  must  have  been  upon  the  pleadings.  Now, 
the  pleadings  were  that  the  vendor  in  that  case  proposed  to  sell 
to  the  defendant.  There  was  no  suggestion  of  any  agreement 
which  could  be  enforced.  The  defendant  proposed  to  the 
plaintiff  to  sell  and  deliver,  if  the  plaintiff  would  agree  to  pur- 
chase upon  the  terms  offered,  and  give  notice  at  an  earlier  hour 
than  four  of  the  afternoon  of  that  day  ;  and  the  plaintiff  says 
he  agreed  to  purchase,  but  does  not  say  the  defendant  agreed 
to  sell.  He  agreed  to  purchase,  and  gave  notice  before  4  o'clock 
in  the  afternoon.  Although  the  case  is  not  so  clearly  and  satis- 
factorily reported  as  might  be  desired,  it  is  only  necessary  to 
read  the  judgment  to  see  that  it  proceeds  solely  upon  this  allega- 
tion in  the  pleadings.  Duller,  J.,  says  :  "  As  to  the  subsequent 
time,  the  promise  can  only  be  supported  upon  the  ground  of  a 
new  contract  made  at  4  o'clock  ;  but  there  was  no  pretence  for 
that."  Nor  was  there  the  slightest  allegation  in  the  pleadings 
for  that  ;  and  judgment  was  given  against  the  plaintiff. 

Routledge  v.  Grant"  is  plainly  distinguishable  from  this  case 
upon  the  grounds  which  have  been  mentioned.  There  the  con- 
tract was  to  sell  on  certain  terms  ;  possession  to  be  given  upon 
a  particular  day.  Those  terms  were  varied,  and  therefore  no 
agreement  was  come  to  ;  and  when  the  intended  purchaser  was 
willing  to  relinquish  the  condition  which  he  imposed,  the  other 
said,  "  No,  I  withdraw  ;  I  have  made  up  my  mind  not  to  sell 
to  you  ;"  and  the  judgment  of  the  Court  was  that  he  was  per- 
fectly right. 

Then  Warner  v.  Willington^  seems  to  point  out  the  law  in  the 
clearest  and  most  distinct  manner  possible.  An  offer  was  made 
— call  it  an  agreement  or  offer,  it  is  quite  indifferent.  It  was 
so  far  an  offer,  that  it  was  not  to  be  binding  unless  there  was 
an  acceptance,  and  before  acceptance  was  made,  the  offer  was 
retracted,  the  agreement  was  rescinded,  and  the  person  who 
had  then  the  character  of  vendor  declined  to  go  further  with 
the  arrangement,  which  had  been  begun  by  what  had  passed 
between  them.  In  the  present  case  I  read  the  agreement  as  a 
positive  engagement  on  the  part  of  the  defendant  Dodds  that 
he  will  sell  for  ;^8oo,  and,  not  a  promise,  but  an  agreement, 
part  of  the  same  instrument,  that  the  plaintiff  shall  not  be  called 
upon  to  express  his  acquiescence  in  that  agreement  until  Friday 
'  3  T.  R.  653.  «  4  Bing.  653.  ^  3  Drew.  523. 


256  DICKINSON   V.    DODDS.  [CHAP,  I. 

at  9  o'clock.  Before  Friday  at  9  o'clock  the  defendant  receives 
notice  of  acceptance.  Upon  what  ground  can  the  defendant 
now  be  let  off  his  contract  ?  It  is  said  that  Allan  can  sustain 
his  agreement  with  the  defendant,  because  at  the  time  when 
they  entered  into  the  contract  the  defendant  was  possessed  of 
the  property,  and  the  plaintiff  had  nothing  to  do  with  it.  But 
it  would  be  opening  the  door  to  fraud  of  the  most  flagrant  de- 
scription if  it  was  permitted  to  a  defendant,  the  owner  of  prop- 
erty, to  enter  into  a  binding  contract  to  sell,  and  then  sell  it  to 
somebody  else  and  say  that  by  the  fact  of  such  second  sale  he 
has  deprived  himself  of  the  property  which  he  has  agreed  to 
sell  by  the  first  contract.  That  is  what  Allan  says  in  substance, 
for  he  says  that  the  sale  to  him  was  a  retractation  which  deprived 
Dodds  of  the  equitable  interest  he  had  in  the  property,  although 
the  legal  estate  remained  in  him.  But  by  the  fact  of  the  agree- 
ment, and  by  the  relation  back  of  the  acceptance  (for  such  I 
must  hold  to  be  the  law)  to  the  date  of  the  agreement,  the 
property  in  equity  was  the  property  of  the  plaintiff,  and  Dodds 
had  nothing  to  sell  to  Allan.  The  property  remained  intact, 
unaffected  by  any  contract  with  Allan,  and  there  is  no  ground, 
in  my  opinion,  for  the  contention  that  the  contract  with  Allan 
can  be  supported.  Tt  would  be  doing  violence  to  principles 
perfectly  well  known  and  often  acted  upon  in  this  Court.  I 
think  the  plaintiff  has  made  out  very  satisfactorily  his  title  to  a 
decree  for  specific  performance,  both  as  having  the  equitable 
interest,  which  he  asserts  is  vested  in  him,  and  as  being  a  pur- 
chaser of  the  property  for  valuable  consideration  without  notice 
against  both  Dodds,  the  vendor,  and  Allan,  who  has  entered 
into  the  contract  with  him. 

There  will  be  a  decree  for  specific  performance,  with  a  decla- 
ration that  Allan  has  no  interest  in  the  property  ;  and  the  plain- 
tiff will  be  at  liberty  to  deduct  his  costs  of  the  suit  out  of  his 
purchase-money. 

From  this  decision  both  the  defendants  appealed,  and  the 
appeals  were  heard  on  March  31st  and  April  ist,  1876, 

Swanston,  Q.C.  {Crossley  with  him),  for  the  defendant  Dodds. 

H.  Jackson,  Q.C.  {Gazdar  with  him),  for  the  defendant  Allan. 

Kay,  Q.C,  and  Caldecott  for  the  plaintiff. 

James,  L.J.,  after  referring  to  the  document  of  June  loth, 
1874,  continued  : 

The  document,  though  beginning  "  I  hereby  agree  to  sell," 
was  nothing  but  an  offer,  and  was  only  intended  to  be  an  offer, 
for  the  plaintiff  himself  tells  us  that  he  required  time  to  con- 
sider whether  he  would  enter  into  an  agreement  or  not.  Unless 
both  parties  had  then  agreed  there  was  no  concluded  agreement 


SEC.  I^.]  DICKINSON  V.   DODDS.  257 

then  made  ;  it  was  in  effect  and  substance  only  an  offer  to  sell. 
The  plaintiff,  being  minded  not  to  complete  the  bargain  at  that 
lime,  added  this  memorandum — "  This  offer  to  be  left  over 
until  Friday,  9  o'clock  a.m.,  June  12th,  1874."  That  shows  it 
was  only  an  offer.  There  was  no  consideration  given  for  the 
undertaking  or  promise,  to  whatever  extent  it  may  be  consid- 
ered binding,  to  keep  the  property  unsold  until  9  o'clock  on 
Friday  morning  ;  but  apparently  Dickinson  was  of  opinion, 
and  probably  Dodds  was  of  the  same  opinion,  that  he  (Dodds) 
was  bound  by  that  promise,  and  could  not  in  any  way  withdraw 
f.om  it,  or  retract  it,  until  9  o'clock  on  Friday  morning,  and 
this  probably  explains  a  good  deal  of  what  afterward  took  place. 
But  it  is  clear  settled  law,  on  one  of  the  clearest  principles  of 
law,  that  this  promise,  being  a  mere  nudum  pactum^  was  not  bind- 
ing, and  that  at  any  moment  before  a  complete  acceptance  by 
Dickinson  of  the  offer,  Dodds  was  as  free  as  Dickinson  himself. 
Well,  that  being  the  state  of  things,  it  is  said  that  the  only  mode 
in  which  Dodds  could  assert  that  freedom  was  by  actually  and 
distinctly  saying  to  Dickinson,  "  Now  I  withdraw  my  offer." 
It  appears  to  me  that  there  is  neither  principle  nor  authority 
for  the  proposition  that  there  must  be  an  express  and  actual 
-withdrawal  of  the  offer,  or  what  is  called  a  retractation.  It 
must,  to  constitute  a  contract,  appear  that  the  two  minds  were 
at  one,  at  the  same  moment  of  time — that  is,  that  there  was  an 
offer  continuing  up  to  the  time  of  the  acceptance.  If  there  was 
not  such  a  continuing  offer,  then  the  acceptance  comes  to  noth- 
ing. Of  course  it  may  well  be  that  the  one  man  is  bound  in 
some  way  or  other  to  let  the  other  man  know  that  his  mind 
with  regard  to  the  offer  has  been  changed  ;  but  in  this  case, 
beyond  all  question,  the  plaintiff  knew  that  Dodds  was  no 
longer  minded  to  sell  the  property  to  him  as  plainly  and  clearly 
as  if  Dodds  had  told  him  in  so  many  words,  "  I  withdraw  the 
offer."  This  is  evident  from  the  plaintiff's  own  statements  in 
the  bill. 

The  plaintiff  says  in  effect  that,  having  heard  and  knowing 
that  Dodds  was  no  longer  minded  to  sell  to  him,  and  that  he 
was  selling  or  had  sold  to  some  one  else,  thinking  that  he  could 
not  in  point  of  law  withdraw  his  offer,  meaning  to  fix  him  to  it, 
and  endeavoring  to  bind  him,  "  I  went  to  the  house  where  he 
was  lodging,  and  saw  his  mother-in-law,  and  left  with  her  an 
acceptance  of  the  offer,  knowing  all  the  while  that  he  had  en- 
tirely changed  his  mind.  I  got  an  agent  to  watch  for  him  at 
7  o'clock  the  next  morning,  and  I  went  to  the  train  just  before 
9  o'clock,  in  order  that  I  might  catch  him  and  give  him  my 
notice    of   acceptance   just    before    9    o'clock,    and    when    that 


258  DICKINSON   V.   DODDS.  [CHAP.  I. 

occurred  he  told  my  agent,  and  he  told  me,  you  are  too  late, 
and  he  then  threw  back  the  paper."  It  is  to  my  mind  quite 
clear  that  before  there  was  any  attempt  at  acceptance  by  the 
plaintiff,  he  was  perfectly  well  aware  that  Dodds  had  changed 
his  mind,  and  that  he  had,  in  fact,  agreed  to  sell  the  property 
to  Allan,  It  is  impossible,  therefore,  to  say  there  was  ever  that 
existence  of  the  same  mind  between  the  two  parties  which  is 
essential  in  point  of  law  to  the  making  of  an  agreement.  I  am 
of  opinion,  therefore,  that  the  plaintiff  has  failed  to  prove  that 
there  was  any  binding  contract  between  Dodds  and  himself. 

Mellish,  L.J.  I  am  of  the  same  opinion.  The  first  question 
is,  whether  this  document  of  June  loth,  1874,  which  was  signed 
by  Dodds,  was  an  agreement  to  sell,  or  only  an  offer  to  sell,  the 
property  therein  mentioned  to  Dickinson  ;  and  I  am  clearly  of 
opinion  that  it  was  only  an  offer,  although  it  is  in  the  first  part 
of  it,  independently  of  the  postscript,  worded  as  an  agreement. 
I  apprehend  that,  until  acceptance,  so  that  both  parties  are 
bound,  even  though  an  instrument  is  so  worded  as  to  express 
that  both  parties  agree,  it  is  in  point  of  law  only  an  offer,  and, 
until  both  parties  are  bound,  neither  party  is  bound.  It  is  not 
necessary  that  both  parties  should  be  bound  within  the  Statute 
of  Frauds,  for,  if  one  party  makes  an  offer  in  writing,  and  the 
other  accepts  it  verbally,  that  will  be  sufficient  to  bind  the  per- 
son who  has  signed  the  written  document.  But,  if  there  be  no 
agreement,  either  verbally  or  in  writing,  then,  until  acceptance, 
it  is  in  point  of  law  an  offer  only,  although  worded  as  if  it  were 
an  agreement.  But  it  is  hardly  necessary  to  resort  to  that  doc- 
trine in  the  present  case,  because  the  postscript  calls  it  an  offer, 
and  says,  "  this  offer  to  be  left  over  until  Friday,  9  o'clock  a.m." 
Well,  then,  this  being  only  an  offer,  the  law  says — and  it  is  a 
perfectly  clear  rule  of  law — that,  although  it  is  said  that  the 
offer  is  to  be  left  open  until  Friday  morning  at  9  o'clock,  that 
did  not  bind  Dodds.  He  was  not  in  point  of  law  bound  to  hold 
the  offer  over  until  9  o'clock  on  Friday  morning.  He  was  not 
so  bound  either  in  law  or  in  equity.  Well,  that  being  so,  when 
on  the  next  day  he  made  an  agreement  with  Allan  to  sell  the 
property  to  him,  I  am  not  aware  of  any  ground  on  which  it  can 
be  said  that  that  contract  with  Allan  was  not  as  good  and  bind- 
ing a  contract  as  ever  was  made.  Assuming  A-llan  to  have 
known  (there  is  some  dispute  about  it,  and  Allan  does  not  admit 
that  he  knew  of  it,  but  I  will  assume  that  he  did)  that  Dodds 
had  made  the  offer  to  Dickinson,  and  had  given  him  till  Friday 
morning  at  9  o'clock  to  accept  it,  still  in  point  of  law  that  could 
not  prevent  Allan  from  making  a  more  favorable  offer  than  Dick- 
inson, and  entering  at  once  into  a  binding  agreement  with  Dodds. 


SEC.  I^.]  DICKINSON"  V.    DODDS.  259 

Then  Dickinson  is  informed  by  Berry  tliat  the  property  has 
been  sold  by  Dodds  to  Allan.  Berry  does  not  tell  us  from 
whom  he  heard  it,  but  he  says  chat  he  did  hear  it,  that  he  knew 
it,  and  that  he  informed  Dickinson  of  it.  Now,  stopping  there, 
the  question  which  arises  is  this — If  an  offer  has  been  made  for 
the  sale  of  property,  and  before  that  offer  is  accepted,  the  person 
who  has  made  the  offer  enters  into  a  binding  agreement  to  sell 
the  property  to  somebody  else,  and  the  person  to  whom  the 
offer  was  first  made  receives  notice  in  some  way  that  the  prop- 
erty has  been  sold  to  another  person,  can  he  after  that  make  a 
binding  contract  by  the  acceptance  of  the  offer  ?  I  am  of  opin- 
ion that  he  cannot.  The  law  may  be  right  or  wrong  in  saying 
that  a  person  who  has  given  to  another  a  certain  time  within 
which  to  accept  an  offer  is  not  bound  by  his  promise  to  give 
that  time  ;  but,  if  he  is  not  bound  by  that  promise,  and  may 
still  sell  the  property  to  some  one  else,  and  if  it  be  the  law  that, 
in  order  to  make  a  contract,  the  two  minds  must  be  in  agree- 
ment at  some  one  time — that  is,  at  the  time  of  the  acceptance — 
how  is  it  possible  that  when  the  person  to  whom  the  offer  has 
been  made  knows  that  the  person  who  has  made  the  offer  has 
sold  the  property  to  some  one  else,  and  that,  in  fact,  he  has  not 
remained  in  the  same  mind  to  sell  it  to  him,  he  can  be  at  liberty 
to  accept  the  offer  and  thereby  make  a  binding  contract  ?  It 
seems  to  me  that  would  be  simply  absurd.  If  a  man  makes  an 
offer  to  sell  a  particular  horse  in  his  stable,  and  says,  "  I  will 
give  you  until  the  day  after  to-morrow  to  accept  the  offer,"  and 
the  next  day  goes  and  sells  the  horse  to  somebody  else,  and  re- 
ceives the  purchase-money  from  him,  can  the  person  to  whom 
the  offer  was  originally  made  then  come  and  say,  "I  accept," 
so  as  to  make  a  binding  contract,  and  so  as  to  be  entitled  to 
recover  damages  for  the  non-delivery  of  the  horse  ?  If  the  rule 
of  law  is  that  a  mere  offer  to  sell  property,  which  can  be  with- 
drawn at  any  time,  and  which  is  made  dependent  on  the  accept- 
ance of  the  person  to  whom  it  is  made,  is  a  mere  tiudum pactuniy 
how  is  it  possible  that  the  person  to  whom  the  offer  has  been 
made  can  by  acceptance  make  a  binding  contract  after  he  knows 
that  the  person  who  has  made  the  offer  has  sold  the  property  to 
some  one  else  ?  It  is  admitted  law  that,  if  a  man  who  makes 
an  offer  dies,  the  offer  cannot  be  accepted  after  he  is  dead,  and 
parting  with  the  property  has  very  much  the  same  effect  as  the 
death  of  the  owner,  for  it  makes  the  performance  of  the  offer 
impossible,  I  am  clearly  of  opinion  that,  just  as  when  a  man 
who  has  made  an  offer  dies  before  it  is  accepted  it  is  impossible 
that  it  can  then  be  accepted,  so  when  once  the  person  to  whom 
the  offer  was  made  knows  that  the  property  has  been  sold  to 


26o  BYRNE   &   CO.  V.  VAN   TIENHOVEN   &   CO.       [CHAP.  l. 

some  one  else,  it  is  too  late  for  him  to  accept  the  offer,  and  on 
that  ground  I  am  clearly  of  opinion  that  there  was  no  binding 
contract  for  the  sale  of  this  propeity  by  Dodds  to  Dickinson, 
and  even  if  there  had  been,  it  seems  to  me  that  the  sale  of  the 
property  to  Allan  was  first  in  point  of  time.  However,  it  is  not 
necessary  to  consider,  if  there  had  been  two  binding  contracts, 
which  of  them  would  be  entitled  to  priority  in  equity,  because 
there  is  no  binding  contract  between  Dodds  and  Dickinson. 

Baggallay,  J. a.  I  entirely  concur  in  the  judgments  which 
have  been  pronounced. 

James,  L.J.     The  bill  will  be  dismissed  with  costs. 

Swanston,  Q.C.      We  shall  have  the  costs  of  the  appeal. 

Kay,  Q.C.     There  should  only  be  the  costs  of  one  appeal. 

Jf.  Jackson,  Q.C.  The  defendant  Allan  was  obliged  to  pro- 
tect himself. 

Mellish,  L.J.  He  had  a  separate  case.  There  might,  if  two 
contracts  had  been  proved,  have  been  a  question  of  priority. 

James,  L.J.  I  think  the  plaintiff  must  pay  the  costs  of  both 
appeals. 


BYRNE  &  CO.  V.  LEON   VAN  TIENHOVEN  &  CO. 

In   the    High    Court    of   Justice,   Common    Pleas   Division, 
March  6,  1880. 

[Reported  t'n  Law  Reports,  5  Common  Pleas  Division  344.] 

Action  tried  at  Cardiff  assizes,  before  Lindley,  J.,  without  a 
jury. 

B.   T.   Williams  and  £.  Francis  Williams  for  the  plaintiffs. 

M'Intyre,  Q.C,  and  Hughes  for  the  defendants. 

Cur.  adv.  vult. 

Lindley,  J.  This  was  an  action  for  the  recovery  of  damages 
for  the  non-delivery  by  the  defendants  to  the  plaintiffs  of  1000 
boxes  of  tinplates,  pursuant  to  an  alleged  contract,  which  I  will 
refer  to  presently.  The  action  was  tried  at  Cardiff  before  myself 
without  a  jury  ;  and  it  was  agreed  at  the  trial  that  in  the  event 
of  the  plaintiffs  being  entitled  to  damages  they  should  be  ^375. 

The  defendants  carried  on  business  at  Cardiff  and  the  plain- 
tiffs at  New  York,  and  it  takes  ten  or  eleven  days  for  a  letter 
posted  at  either  place  to  reach  the  other.  The  alleged  contract 
consists  of  a  letter  written  by  the  defendants  to  the  plaintiffs 
on  October  ist,  1879,  and  received  by  them  on  the  nth,  and 
accepted  by  telegram  and  letter  sent  to  the  defendants  on  Octo- 
ber  nth    and    15th   respectively.     These   letters   and   telegram 


SEC.  I^.]         BVRXE   &    CO.  T\  VAN    TIENMOVEN   &    CO.  261 

were  as  follows  :  [The  learned  judge  read  the  letter  of  Octo- 
ber ist,  1879,  from  the  defendants  to  the  plaintiffs.  It  contained 
a  reference  to  the  price  of  tinplates  branded  "  Hensol,"  and  the 
"  offer  of  1000  boxes  of  this  brand  14  X  20  at  155.  dd.  per  box 
f.  o.  b.  here  with  i  per  cent  for  our  commission  ;  terms,  four 
months'  bankers'  acceptance  on  London  or  Liverpool  against 
shipping  documents,  but  subject  to  your  cable  on  or  before  the 
15th  inst.  here."  The  answer  was  a  telegram  from  the  plaintiffs 
to  the  defendants  sent  on  October  nth,  1879:  "  Accept  thou- 
sand Hensols."  On  October  15th,  1879,  the  plaintiffs  wrote  to 
the  defendants  :  "  We  have  to  thank  you  for  your  valued  letter 
under  date  ist  inst.,  which  we  had  on  Saturday  p.m.,  and  im- 
mediately cabled  acceptance  of  the  1000  boxes  '  Hensol,'  ic.  14/20 
as  offered.  Against  this  transaction  we  have  pleasure  in  hand- 
ing you  herewith  the  Canadian  Bank  of  Commerce  letter  of 
credit  No.  78,  October  13th,  on  Messrs.  A.  R.  McMaster  & 
Brothers,  London,  for  ^^  1000.  .  .  .  Will  thank  you  to  ship  the 
1000  *  Hensols  '  without  delay."]  These  letters  and  telegram 
would,  if  they  stood  alone,  plainly  constitute  a  contract  binding 
on  both  parties.  The  defendants  in  their  pleadings  say  that 
there  was  no  sufficient  writing  within  the  Statute  of  Frauds,  and 
that  they  contracted  only  as  agents  ;  but  these  contentions  were 
very  properly  abandoned  as  untenable,  and  do  not  require 
further  notice.  The  defendants,  however,  raise  two  other  de- 
fences to  the  action  which  remain  to  be  considered.  First,  they 
say  that  the  offer  made  by  their  letter  of  October  ist  was  re- 
voked by  them  before  it  had  been  accepted  by  the  plaintiffs  by 
their  telegram  of  the  nth  or  letter  of  the  15th.'  The  facts  as 
to  these  are  as  follows  :  On  October  8th  the  defendants  wrote 
and  sent  by  post  to  the  plaintiffs  a  letter  withdrawing  their  offer 
of  the  ist.  The  material  part  of  this  letter  was  as  follows  : 
"  Confirming  our  respects  of  the  ist  inst.  we  hasten  to  inform 
you  that  there  having  been  a  regular  panic  in  the  tinplate 
market  during  the  last  few  days,  which  has  caused  prices  to  run 
up  about  25  per  cent,  we  are  reluctantly  compelled  to  withdraw 
any  offer  we  have  made  to  our  constituents,  and  must  therefore 
also  consider  our  offer  to  you  for  1000  boxes  '  Hensols  '  at 
17^-.  dd.  to  be  cancelled  from  this  date."  This  letter  of  Octo- 
ber 8th  reached  the  plaintiffs  on  October  20th.  On  the  same 
day  the  plaintiffs  telegraphed  to  the  defendants  demanding 
shipment,  and  sent  them  a  letter  insisting  on  completion  of  the 
contract.  [The  learned  judge  read  the  letter.  In  it  the  plain- 
tiffs expressed  astonishment  at  the  contents  of  the  letter  of  the 
8th,  recapitulated  the  transactions,   and  said   "  practically  and 

'  Only  so  much  of  the  opinion  is  c^iven  as  relates  to  this  question. — Ed. 


262  BYRNE   &   CO.  V.  VAN   TIENHOVEN   &   CO.       [CHAP.  I. 

in  fact  a  contract  for  looo  boxes  came  into  existence  between 
you  and  ourselves.  It  requires  the  consent  of  both  parties  to  a 
contract  to  cancel  same.  If  instead  of  writing  to  us  on  the  8th 
you  had  cabled  '  offer  withdrawn,'  you  would  have  protected 
yourselves  and  us  too.  We  disposed  of  the  looo  boxes  on 
the  lyth  at  a  net  profit  of  $1850.  .  .  .  We  write  our  friend 
Philip  S.  Philips,  Esq.,  of  Aberkllery,  requesting  him  to  call  on 
you  and  demand  delivery  as  agreed."  In  a  postscript  they 
added,  "  You  speak  of  offer  of  1000  boxes  Hensol  at  17.^.  6d. 
The  only  firm  offer  we  received  from  you  under  date  of  Octo- 
ber ist  was  1000  boxes  at  15^.  6d.,  and  10  per  cent  f.  o.  b.  Car- 
diff ;  we  cable  you  to-night '  demand  shipment.'  "]  This  letter 
is  followed  by  one  from  the  defendants  to  the  plaintiffs  of 
October  25th  refusing  to  complete.  [The  learned  judge  read  it. 
The  defendants  acknowledged  the  receipt  of  the  cable  message 
of  the  20th,  enclosed  the  credit  note  sent  in  the  letter  of  the  15th, 
and  added,  "  Our  offer  having  been  withdrawn  by  our  letter  of 
the  8th  inst.,  we  now  return  the  above  credit,  for  which  we  have 
no  further  need,  but  take  this  opportunity  to  observe  that  in 
case  of  any  future  business  proposals  between  us,  we  must  re- 
quest you  to  conform  to  our  rules  and  principles,  which  require 
bankers'  credit  in  this  country,  whereas  the  firm  of  A.  R. 
McMaster  &  Brothers  are  not  classified  as  such."] 

There  is  no  doubt  that  an  offer  can  be  withdrawn  before  it  is 
accepted,  and  it  is  immaterial  whether  the  offer  is  expressed  to 
be  open  for  acceptance  for  a  given  time  or  not — Routledge  v. 
Grant.'  For  the  decision  of  the  present  case,  however,  it  is 
necessary  to  consider  two  other  questions — viz.:  i.  Whether  a 
withdrawal  of  an  offer  has  any  effect  until  it  is  communicated 
to  the  person  to  whom  the  offer  has  been  sent  ?  2.  Whether 
posting  a  letter  of  withdrawal  is  a  communication  to  the  person 
to  whom  the  letter  is  sent  ? 

It  is  curious  that  neither  of  these  questions  appears  to  have 
been  actually  decided  in  this  country.  As  regards  the  first 
question,  I  am  aware  that  Pothier  and  some  other  writers  of 
celebrity  are  of  opinion  that  there  can  be  no  contract  if  an  offer 
is  withdrawn  before  it  is  accepted,  although  the  withdrawal  is 
not  communicated  to  the  person  to  whom  the  offer  has  been 
made.  The  reason  for  this  opinion  is  that  there  is  not,  in  fact^ 
any  such  consent  by  both  parties  as  is  essential  to  constitute  a 
contract  between  them.  Against  this  view,  however,  it  has  been 
urged  that  a  state  of  mind  not  notified  cannot  be  regarded  in 
dealings  between  man  and  man  ;  and  that  an  uncommunicated 
revocation  is  for  all  practical  purposes  and  in  point  of  law  no 

'  4  Bing.  653. 


SEC.  I^^]        BYRNE   &   CO.  V.  VAN   TIENIIOVEN   &   CO.  263 

revocation  at  all.  This  is  the  view  taken  in  the  United  States. 
See  Tayloe  v.  Merchants'  Fire  Insurance  Co.'  cited  in  Benjamin 
on  Sales,  pp.  56-58,  and  it  is  adopted  by  Mr.  Benjamin.  The 
same  view  is  taken  by  Mr.  Pollock  in  his  excellent  work  on 
Principles  of  Contract,  2d  ed.,  p.  10,  and  by  Mr.  Leake  in  his 
Digest  of  the  Law  of  Contracts,  p.  43.  This  view,  moreover, 
appears  to  me  much  more  in  accordance  with  the  general  prin- 
ciples of  English  law  than  the  view  maintained  by  Pothier.  I 
pass,  therefore,  to  the  next  question — viz.,  whether  posting  the 
letter  of  revocation  was  a  sufficient  communication  of  it  to  the 
plaintiff.  The  offer  was  posted  on  October  ist,  the  withdrawal 
was  posted  on  the  8th,  and  did  not  reach  the  plaintiff  until  after 
he  had  posted  his  letter  of  the  nth,  accepting  the  offer.  It 
may  be  taken  as  now  settled  that  where  an  offer  is  made  and 
accepted  by  letters  sent  through  the  post,  the  contract  is  com- 
pleted the  moment  the  letter  accepting  the  offer  is  posted  (Har- 
ris's Case,"  Dunlop  v.  Higgins')  even  although  it  never  reaches 
its  destination.  When,  however,  these  authorities  are  looked 
at,  it  will  be  seen  that  they  are  based  upon  the  principle  that 
the  writer  of  the  offer  has  expressly  or  impliedly  assented  to 
treat  an  answer  to  him  by  a  letter  duly  posted  as  a  sufficient 
acceptance  and  notification  to  himself,  or,  in  other  words,  he 
has  made  the  post-office  his  agent  to  receive  the  acceptance  and 
notification  of  it.  But  this  principle  appears  to  me  to  be  in- 
applicable to  the  case  of  the  withdrawal  of  an  offer.  In  this 
particular  case  I  can  find  no  evidence  of  any  authority  in  fact 
given  by  the  plaintiffs  to  the  defendants  to  notify  a  withdrawal 
of  their  offer  by  merely  posting  a  letter  ;  and  there  is  no  legal 
principle  or  decision  which  compels  me  to  hold,  contrary  to  the 
fact,  that  the  letter  of  October  8th  is  to  be  treated  as  communi- 
cated to  the  plaintiff  on  that  day  or  on  any  day  before  the  20th, 
when  the  letter  reached  them.  But  before  that  letter  had 
reached  the  plaintiffs  they  had  accepted  the  offer,  both  by  tele- 
gram and  by  post  ;  and  they  had  themselves  resold  the  tin-plates 
at  a  profit.  In  my  opinion  the  withdrawal  by  the  defendants  on 
October  8th  of  their  offer  of  the  ist  was  inoperative  ;  and  a  com- 
plete contract  binding  on  both  parties  was  entered  into  on 
October  nth,  when  the  plaintiffs  accepted  the  offer  of  the  ist, 
which  they  had  no  reason  to  suppose  had  been  withdrawn.  Be- 
fore leaving  this  part  of  the  case  it  may  be  as  well  to  point  out  the 
extreme  injustice  and  inconvenience  which  any  other  conclusion 
would  produce.  If  the  defendants'  contention  were  to  prevail,  no 
person  who  had  received  an  offer  by  post  and  had  accepted  it 
would  know  his  position  until  he  had  waited  such  a  time  as  to 
'  9  How.  Sup.  Ct.  Rep.  390.        «  Law  Rep.  7  Ch.  587.        ^  j  jj.  L.  3S1. 


264  COLEMAN   V.   APPLEGARTH   &   BRADLEY.        [CHAP.  I, 

be  quite  sure  that  a  letter  withdrawing  the  offer  had  not  been 
posted  before  his  acceptance  of  it.  It  appears  to  me  that  both 
legal  principles  and  practical  convenience  require  that  a  person 
who  has  accepted  an  offer  not  known  to  him  to  have  been  re- 
voked shall  be  in  a  position  safely  to  act  upon  the  footing  that 
the  offer  and  acceptance  constitute  a  contract  binding  on  both, 
parties. 

Judgment  for  plaintiffs. 


CHARLES   M.  COLEMAN  v.  RUFUS    W.  APPLEGARTH 
AND   PATRICK   BRADLEY. 

In   the   Court    of   Appeals   of    Maryland,   October   Term^ 

1887. 

[Reported  in  68  Maryland  Reports  21.] 

Appeal  from  the  Circuit  Court  of  Baltimore  City. 

The  case  is  stated  in  the  opinion  of  the  Court. 

The  cause  was  argued  before  Alvey,  C.J.,  Stone,  Miller, 
Robinson,  and  Bryan,  J. 

Richard  Bernard  for  the  appellant. 

Sebastian  Broavn  and  Rufiis  W.  Applegarth  for  the  appellees. 

Alvey,  C.J.,  delivered  the  opinion  of  the  Court. 

Coleman,  the  appellant,  filed  his  bill  against  Applegarth  and 
Bradley,  the  appellees,  for  a  specific  performance  of  what  is 
alleged  to  be  a  contract  made  by  Applegarth  with  Coleman  for 
the  sale  of  a  lot  of  ground  in  the  city  of  Baltimore.  The  con- 
tract, upon  which  the  application  is  made,  and  which  is  sought 
to  be  specifically  enforced,  reads  thus  :  "  For  and  in  consider- 
ation of  the  sum  of  $5  paid  me,  I  do  hereby  give  to  Charles 
Coleman  the  option  of  purchasing  my  lot  of  ground,  northwest 
corner,  etc.,  assigned  to  me  by  Wright  and  McDermot,  by  deed, 
dated,  etc.,  subject  to  the  ground  rent  therein  mentioned,  at 
and  for  the  sum  of  $645  cash,  at  any  time  on  or  before  the  first  day 
of  Piovetnber,  1886."  It  was  dated  September  3d,  1886,  and 
signed  by  Applegarth  alone. 

The  plaintiff,  Coleman,  did  not  exercise  his  option  to  pur- 
chase within  the  time  specified  in  the  contract  ;  but  he  alleges 
in  his  bill  that  Applegarth,  after  making  the  contract  of  Sep- 
tember 3d,  1886,  and  before  the  expiration  of  the  time  limited 
for  the  exercise  of  the  option,  verbally  agreed  with  the  plaintiff 
to  extend  the  time  for  the  exercise  of  such  option  to  Decem- 
ber ist,  1886.     It  is  further  alleged   that,  about  November  9th, 


5EC.  I^.]         COLEMAN   V.   APPLECIARTII   &   BRADLEY.  265 

1886,  without  notice  to  tlie  plaintiff,  Applegarth  sold,  and 
assigned  by  deed,  the  lot  of  ground  to  Bradley,  for  the  consid- 
eration of  $700  ;  and  that,  subsequently,  but  prior  to  Decem- 
ber ist,  1886,  the  plaintiff  tendered  to  Applegarth,  in  lawful 
money,  the  sum  of  $645,  and  demanded  a  deed  of  assignment 
of  the  lot  of  ground,  but  which  was  refused.  It  is  also  charged 
that  Bradley  had  notice  of  the  optional  right  of  the  plaintiff  at 
the  time  of  taking  the  deed  of  assignment  from  Applegarth,  and 
that  such  deed  was  made  in  fraud  of  the  rights  of  the  plaintiff 
under  the  contract  of  September  3d,  1886.  The  relief  prayed 
is,  that  the  deed  to  Bradley  may  be  declared  void,  and  that 
Applegarth  may  be  decreed  to  convey  the  lot  of  ground  to  the 
plaintiff,  upon  payment  by  the  latter  of  $645  ;  and  for  gen- 
eral relief. 

The  defendants,  both  Applegarth  and  Bradley,  by  their  an- 
swer, deny  that  there  was  any  binding  contract,  or  optional 
right,  existing,  in  regard  to  the  sale  of  the  lot,  as  between 
Applegarth  and  the  plaintiff,  at  the  time  of  the  sale  and  transfer 
of  the  lot  to  Bradley  ;  and  the  latter  denies  all  notice  of  the 
alleged  agreement  for  the  extension  of  time  for  the  exercise  of 
the  option  by  the  plaintiff  ;  and  both  defendants  rely  upon  the 
Statute  of  Frauds  as  a  defence  to  the  relief  prayed. 

The  plaintiff  was  examined  as  a  witness  in  his  own  behalf, 
and  he  also  called  and  examined  both  of  the  defendants  as  wit- 
nesses in  support  of  the  allegation  of  his  bill.  But,  without 
special  reference  to  the  proof  taken,  the  questions  that  are  de- 
cisive of  the  case  may  be  determined  upon  the  facts  as  alleged 
by  the  bill  alone,  in  connection  with  the  contract  exhibited,  as 
upon  demurrer  ;  such  facts  being  considered  in  reference  to  the 
grounds  of  defence  interposed  by  the  defendants. 

The  contract  set  up  is  not  one  of  sale  and  purchase,  but  sim- 
ply for  the  option  to  purchase  within  a  specified  time,  and  for  a 
given  price.  It  was  unilateral  and  binding  upon  one  party 
only.  There  was  no  mutuality  in  it,  and  it  was  binding  upon 
Applegarth  only  for  the  time  stipulated  for  the  exercise  of  the 
option.  After  the  lapse  of  the  time  given,  there  was  nothing 
to  bind  him  to  accept  the  price  and  convey  the  property  ;  and 
the  fact  that  this  unilateral  agreement  was  reduced  to  writing 
added  nothing  to  give  it  force  or  operative  effect  beyond  the 
time  therein  limited  for  the  exercise  of  the  option  by  the  plain- 
tiff. It  is  quite  true,  as  contended  by  the  plaintiff,  that,  as  a 
general  proposition,  time  is  not  deemed  by  courts  of  equity  as 
being  of  the  essence  of  contracts  ;  and  that,  in  perfected  con- 
tracts, ordinarily,  the  fact  that  the  time  for  performance  has 
past  will  not  be  regarded  as  a  reason  for  withholding  specific 


266  COLEMAN   V.   APPLEGARTH   &   BRADLEY.       [cHAP.  I. 

execution.  But  while  this  is  the  general  rule  upon  the  subject, 
that  general  rule  has  well-defined  exceptions,  which  are  as  con- 
stantly recognized  as  the  general  rule  itself.  If  the  parties 
have,  as  in  this  case,  expressly  treated  time  as  of  the  essence  of 
the  agreement,  or  if  it  necessarily  follows  from  the  nature  and 
circumstances  of  the  agreement  that  it  should  be  so  regarded, 
courts  of  equity  will  not  lend  their  aid  to  enforce  specifically 
the  agreement,  regardless  of  the  limitation  of  time.  2  Sto.  Eq. 
Juris.,  §  776.  Here  time  was  of  the  very  essence  of  the  agree- 
ment, the  nominal  consideration  being  paid  to  the  owner  for 
holding  the  property  for  the  specified  time,  subject  to  the  right 
of  the  plaintiff  to  exercise  his  option  whether  he  would  buy  it 
or  not.  When  the  time  limited  expired,  the  contract  was  at  an 
end,  and  the  right  of  option  gone,  if  that  right  has  not  been 
extended  by  some  valid  binding  agreement,  that  can  be  en- 
forced. This  would  seem  to  be  the  plain  dictate  of  reason, 
upon  the  terms  and  nature  of  the  contract  itself  ;  and  that  is 
the  plain  result  of  the  decision  of  this  Court,  made  in  respect 
to  an  optional  contract  to  purchase,  in  the  case  of  Maughlin  v. 
Perry  &  Warren,  35  Md.  352,  359,  360. 

As  must  be  observed,  it  is  not  alleged  or  pretended  that  the 
plaintiff  attempted  to  exercise  his  option,  and  to  complete  a 
contract  of  purchase,  within  the  time  limited  by  the  written 
agreement  of  September  3d,  1886.  But  it  is  alleged  and  shown 
that  before  the  expiration  of  such  time,  the  defendant,  Apple- 
garth,  verbally  agreed  or  promised  to  extend  the  time  for  the 
exercise  of  the  option  by  the  plaintiff,  from  November  ist  to 
December  ist,  1886  ;  and  that  it  was  within  this  latter  or  ex- 
tended period,  and  after  the  property  had  been  sold  and  con- 
veyed to  Bradley,  that  the  plaintiff  proffered  himself  ready  to 
accept  the  property  and  pay  the  price  therefor.  It  is  quite 
clear,  however,  that  such  offer  to  accept  the  property  came  too 
late.  There  was  no  consideration  for  the  verbal  promise  or 
agreement  to  extend  the  time,  and  such  promise  was  a  mere 
nudum  pactum,  and  therefore  not  enforceable,  to  say  nothing  of 
the  Statute  of  Frauds,  which  has  been  invoked  b}?^  the  defend- 
ants. After  November  ist,  1886,  the  verbal  agreement  of 
Applegarth  operated  simply  as  a  mere  continuing  offer  at  the 
price  previously  fixed,  and  which  offer  only  continued  until  it 
should  be  withdrawn  or  otherwise  ended  by  some  act  of  his  ; 
but  he  was  entirely  at  liberty  at  any  time,  before  acceptance, 
to  withdraw  the  offer  ;  and  the  subsequent  sale  and  transfer  of 
the  property  to  Bradley  had  the  effect  at  once  of  terminating 
the  offer  to  the  plaintiff.     Pom.  Spec.  Perf.  of  Conts.,  §§  60-61. 

The  principles  that  govern  in  cases  like  the  present  are  very 


SEC.  10^.]         COLEMAN   V.   APPLEGARTH   &   BRADLEY.  267 

fully  and  clearly  stated  by  the  English  Court  of  Appeal  in 
Chancery,  in  the  case  of  Dickinson  v.  Dodds,  2  Ch.  Div.  463. 
That  case,  in  several  of  its  features,  is  not  unlil<e  the  present. 
There  the  owner  of  property  signed  a  document  which  pur- 
ported to  be  an  agreement  to  sell  it  at  a  fixed  price,  but  added 
a  postscript,  which  he  also  signed,  in  these  words  :  "  This  offer 
to  be  left  over  until  Friday,  9  o'clock  a.m." — two  days  from  the 
date  of  the  agreement.  Upon  application  of  the  party,  who 
claimed  to  be  vendee  of  the  property,  for  specific  performance, 
it  was  held,  upon  full  and  careful  consideration  by  the  Court 
of  Appeal,  that  the  document  amounted  only  to  an  offer,  which 
might  be  withdrawn  at  any  time  before  acceptance,  and  that  a 
sale  to  a  third  person  which  came  to  the  knowledge  of  the  person 
to  whom  the  offer  was  made  was  an  effectual  withdrawal  of  the 
offer.  In  the  course  of  his  judgment,  after  declaring  the  written 
document  to  be  nothing  more  than  an  offer  to  sell  at  a  fixed 
price,  James,  L.  J.,  said  :  "  There  was  no  consideration  given 
for  the  undertaking  or  promise,  to  whatever  extent  it  may  be 
considered  binding,  to  keep  the  property  unsold  until  9  o'clock 
on  Friday  morning  ;  but  apparently  Dickinson  was  of  opinion, 
and  probably  Dodds  was  of  the  same  opinion,  that  he  (Dodds) 
was  bound  by  that  promise,  and  could  not  in  any  way  withdraw 
from  it,  or  retract  it,  until  9  o'clock  on  Friday  morning,  and 
this  probably  explains  a  good  deal  of  what  afterward  took  place. 
But  it  is  clear  settled  law,  on  one  of  the  clearest  principles  of 
law,  that  this  promise,  being  a  mere  nudum  pactuDi^  was  not 
binding,  and  that  at  any  moment  before  a  complete  acceptance 
by  Dickinson  of  the  offer,  Dodds  was  as  free  as  Dickinson  him- 
self. That  being  the  state  of  things,  it  is  said  that  the  only 
mode  in  which  Dodds  could  assert  that  freedom  was  by  actually 
and  distinctly  saying  to  Dickinson,  '  Now  I  withdraw  my  offer.' 
It  appears  to  me  that  there  is  neither  principle  nor  authority  for 
the  proposition  that  there  must  be  an  express  and  actual  with- 
drawal of  the  offer,  or  what  is  called  a  retractation.  It  must, 
to  constitute  a  contract,  appear  that  the  two  minds  were  at  one, 
at  the  same  moment  of  time — that  is,  that  there  was  an  offer 
continuing  up  to  the  time  of  the  acceptance.  If  there  was  not 
such  a  continuing  offer,  then  the  acceptance  comes  to  nothing." 
And  Mellish,  L.J.,  was  quite  as  explicit  in  stating  his  judgment, 
in  the  course  of  which  he  said  :  "  He  was  not  in  point  of  law 
bound  to  hold  the  offer  over  until  9  o'clock  on  Friday  morning. 
He  was  not  so  bound  either  in  law  or  in  equity.  Well,  that 
being  so,  when  on  the  next  day  he  made  an  agreement  with 
Allan  to  sell  the  property  to  him,  I  am  not  aware  of  any  ground 
on  which  it  can  be  said  that  that  contract  with  Allan  was  not  as 


268  COLEMAN   V.   APPLEGARTH   &   BRADLEY.       [cHAP.  I. 

good  and  binding  a  contract  as  ever  was  made.  Assuming 
Allan  to  have  known  (there  is  some  dispute  about  it,  and  Allan 
does  not  admit  that  he  knew  of  it,  but  I  will  assume  that  he  did) 
that  Dodds  had  made  the  offer  to  Dickinson,  and  had  given  him 
till  Friday  morning  at  9  o'clock  to  accept  it,  still,  in  point  of 
law,  that  could  not  prevent  Allan  from  making  a  more  favor- 
able offer  than  Dickinson,  and  entering  at  once  into  a  binding 
agreement  with  Dodds."  And  further  on  he  says  :  "  If  the 
rule  of  law  is  that  a  mere  offer  to  sell  property,  which  can  be 
withdrawn  at  any  time,  and  which  is  made  dependent  on  the 
acceptance  of  the  person  to  whom  it  is  made,  is  a  mere  nudum 
factum,  how  is  it  possible  that  the  person  to  whom  the  offer  has 
been  made  can  by  acceptance  make  a  binding  contract  after  he 
knows  that  the  person  who  has  made  the  offer  has  sold  the 
property  to  some  one  else  ?  It  is  admitted  law  that,  if  a  man 
who  makes  an  offer  dies,  the  offer  cannot  be  accepted  after  he 
is  dead,  and  parting  with  the  property  has  very  much  the  same 
effect  as  the  death  of  the  owner,  for  it  makes  the  performance 
of  the  offer  impossible.  I  am  clearly  of  opinion  that,  just  as 
when  a  man  who  has  made  an  offer  dies  before  it  is  accepted  it 
is  impossible  that  it  can  then  be  accepted,  so  when  once  the 
person  to  whom  the  offer  was  made  knows  that  the  property 
has  been  sold  to  some  one  else,  it  is  too  late  for  him  to  accept 
the  offer  ;  and  on  that  ground  I  am  clearly  of  opinion  that 
there  was  no  binding  contract  for  the  sale  of  this  property  by 
Dodds  to  Dickinson." 

In  this  case,  the  plaintiff  admits  that,  at  the  time  he  proffered 
to  Applegarth  acceptance  of  the  previous  offer  to  sell  at  the 
price  named,  he  was  aware  of  the  fact  that  the  property  had 
been  sold  to  Bradley.  It  was  therefore  too  late  for  him  to 
attempt  to  accept  the  offer,  and  there  WcS  not,  and  could  not 
be  made,  by  such  proffered  acceptance,  any  binding  contract  of 
sale  of  the  property. 

It  follows  that  the  decree  of  the  Court  below,  dismissing  the 
bill  of  the  plaintiff,  must  be  affirmed. 

Decree  affirmed. 


SEC.  I^.]         BRAUER   AND    ANOTHER   7'.    SHAW    it   al.  269 

WILLIAM    W.   BRAUER    and  Another  v.   FRANK    SHAW 

AND  Others. 

SAME  V.  SAME. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
March  29,  1897. 

[Reported  m  168  Massachusetts  Reports  198.] 

Two  actions  of  contract  for  the  alleged  breach  of  two  con- 
tracts. The  cases  were  tried  together  in  the  Superior  Court, 
before  Lilley,  J.,  who  ruled,  as  requested  by  the  defendants, 
that  the  plaintiffs  were  not  entitled  to  recover  in  either  action, 
and  directed  the  jury  to  return  a  verdict  for  the  defendants  in 
each  case  ;  and  the  plaintiffs  alleged  exceptions.  The  facts 
appear  in  the  opinion. 

If.  M.  Rogers  for  the  plaintiffs. 

B.  L.  M.  Tower  {F.  A.  North  with  him)  for  the  defendants. 

Holmes,  J.  These  are  two  actions  of  contract,  on  alleged 
contracts  letting  all  the  cattle  carrying  space  on  the  Warren 
line  of  steamships  for  the  May  sailings  from  Boston  to  Liver- 
pool, the  first  contract  at  the  rate  of  50^-.  a  head,  the  second  and 
alternative  one  at  52^-.  and  6d.  As  we  are  all  of  opinion  that, 
for  one  reason  or  another,  the  right  to  recover  upon  the  first 
contract  is  not  made  out,  it  may  be  stated  shortly.  On  April 
15th,  1892,  after  earlier  correspondence,  the  defendants  wrote 
stating  terms,  saying  that  they  had  telegraphed  that  th'^y 
"would  probably  accept  50X.  if  reply  promptly,"  referring  to 
an  answer  asking  to  have  the  space  kept  until  noon  the  next 
day,  and  to  their  reply  that  they  would  "  try  to  keep  space  for 
you,"  and  adding  that  there  were  several  customers,  and  that 
they  should  feel  "  duty  bound  to  let  it  to  the  first  man  making 
the  best  bid."  The  plaintiffs'  agents  telegraphed  at  fifty-three 
minutes  past  eight  the  next  morning,  making  a  modified  offer. 
Whether  they  had  received  the  above  letter  does  not  appear. 
The  defendants  answered,  "  referring  our  letter  yesterday  first 
offer  for  number  named  has  preference  three  parties  consider- 
ing. Wire  quick  if  you  want  it."  This  was  received  in  the 
New  York  telegraph  office  at  fifteen  minutes  past  ten.  At  twenty 
minutes  past  ten  the  plaintiffs'  agents  telegraphed,  "  Have 
closed  all  your  May  spaces  as  per  letter,"  etc.  This  is  relied 
on  as  making  the  contract.  It  does  not  appear  whether  the 
telegram  which  arrived  only  five  minutes  before  had  been  re- 
ceived.    If  not,  and  if  the  last  telegram   was   in  answer  to  the 


2/0  BRAUER   AND    ANOTHER   V.    SHAW    ct   al.        [CHAP.  I. 

letter  only,  the  plaintiffs  would  encounter  the  question  whether 
the  letter  contained  an  absolute  offer  or  only  invited  one,  and 
if  the  former,  whether  the  offer  had  not  been  rejected  by  the 
modified  offer  in  the  first  telegram  mentioned.  However  this 
may  be,  the  parties  did  not  stop  at  the  point  which  we  have 
reached,  but  went  on  telegraphing  as  we  shall  state,  so  that  if 
there  was  any  moment  when  a  contract  had  been  made  the 
parties  assumed  the  contrary  and  continued  their  bargaining. 
Either  no  contract  had  been  made  thus  far,  or  it  was  discharged 
by  the  conduct  of  the  parties.  It  was  treated  as  discharged  in 
a  letter  of  the  plaintiffs'  agents  written  later  on  the  same  day. 

We  come,  then,  to  the  later  telegrams  of  the  same  day,  which 
are  relied  on  as  making  the  second  contract.  At  half-past 
eleven  the  defendants  telegraphed,  "  Subject  prompt  reply  w411 
let  you  May  space  fifty-two  six."  This  was  received  in  New 
York  at  sixteen  minutes  past  twelve,  and  at  twenty-eight  min- 
utes past  twelve  a  reply  was  sent  accepting  the  offer.  For  some 
reason  this  was  not  received  by  the  defendants  until  twenty 
minutes  past  one.  At  one  the  defendants  telegraphed  revoking 
their  offer,  the  message  being  received  in  New  York  at  forty- 
three  minutes  past  one.  The  plaintiffs  held  the  defendants  to 
their  bargain,  and  both  parties  stand  upon  their  rights. 

There  is  no  doubt  that  the  reply  was  handed  to  the  telegraph 
company  promptly,  and  at  least  it  would  have  been  open  to  a 
jury  to  find  that  the  plaintiffs  had  done  all  that  was  necessary 
on  their  part  to  complete  the  contract.  If  then  the  offer  was 
outstanding  when  it  was  accepted,  the  contract  was  made.  But 
the  offer  was  outstanding.  At  the  time  when  the  acceptance 
was  received,  even,  the  revocation  of  the  offer  had  not  been 
received.  It  seems  to  us  a  reasonable  requirement  that,  to  dis- 
able the  plaintiffs  from  accepting  their  offer,  the  defendants 
should  bring  home  to  them  actual  notice  that  it  had  been  re- 
voked. By  their  choice  and  act  they  brought  about  a  relation 
between  themselves  and  the  plaintiffs  which  the  plaintiffs  could 
turn  into  a  contract  by  an  act  on  their  part  and  authorized  the 
plaintiff's  to  understand  and  to  assume  that  that  relation  existed. 
When  the  plaintiffs  acted  in  good  faith  on  the  assumption,  the 
defendants  could  not  complain.  Knowingly  to  lead  a  person 
reasonably  to  suppose  that  you  offer  and  to  offer  are  the  same 
thing.  O'Donnell  v.  Clinton,  145  Mass.  461,  463  ;  Cornish  v. 
Abington,  4  H.  &  N.  549.  The  offer  must  be  made  before  the 
acceptance,  and  it  does  not  matter  whether  it  is  made  a  longer 
or  a  shorter  time  before,  if  by  its  express  or  implied  terms  it  is 
outstanding  at  the  time  of  the  acceptance.  Whether  much  or 
little  time  has  intervened  it  reaches  forward   to  the  moment  of 


SEC.  -ig.]  QUICK    V.    WHEELER.  2/1 

the  acceptance,  and  speaks  then.  It  would  be  monstrous  to 
allow  an  inconsistent  act  of  the  offerer,  not  known  or  brought 
to  the  notice  of  the  offeree,  to  affect  the  making  of  the  con- 
tract ;  for  instance,  a  sale  by  an  agent  elsewhere  one  minute 
-after  the  principal  personally  has  offered  goods  which  are 
accepted  within  five  minutes  by  the  person  to  whom  he  is  speak- 
ing. The  principle  is  the  same  when  the  time  is  longer  and  the 
act  relied  on  a  step  looking  to  but  not  yet  giving  notice.  The 
contrary  suggestion  by  Wilde,  J.,  in  M'Cullochz'.  Eagle  Ins.  Co., 
I  Pick.  278-279,  is  not  adopted  as  a  ground  of  decision,  and  the 
view  which  we  take  is  that  taken  by  the  Supreme  Court  of  the 
United  States,  and  is  now  the  settled  law  of  England.  Tayloez/. 
Merchants'  Ins.  Co.,  9  How.  390,  400  ;  Patrick  v.  Bowman, 
149  U.  S.  411,  424  ;  Byrne  7'.  Van  Tienhoven,  5  C.  P.  D.  344  ; 
Stevenson  v.  McLean,  5  Q.  B.  D.  346  ;  Henthorn  7'.  Eraser 
[1892],  2  Ch.  27  ;  Thomson  v.  James,  18  Ct.  of  Sess.  Cas. 
(2d  series)  i  ;  Langdell,  Con.,  §  180  ;  Drew  z'.  Nunn,  4  O.  B.  D, 
661,  667  ;  Wheat  V.  Cross,  31  Md.  99,  103  ;  Kempner  v.  Cohn, 
47  Ark.  519,  527. 

It  is  unnecessary  to  consider  other  reasons  which  were  urged 
for  our  decision. 

Exceptions  sustained. 


SAMUEL  P.  QUICK,  Respondent,  v.  MARVIN  WHEELER, 

Appellant. 

In  the  Court  of  Appeals  of  New  York,  September  30,  1879. 
\^Reported  1)1  78  New  York  Reports  300.  J 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  third  judicial  department,  affirming  a  judgment 
in  favor  of  plaintiff,  entered  on  a  verdict,  and  affirming  an  order 
denying  a  motion  for  a  new  trial. 

The  nature  of  the  action  and  the  facts  are  set  forth  sufficiently 
in  the  opinion. 

Alexander  Cumtning  for  appellant. 

A.  Taylor,  for  respondent. 

Earl,  J.  This  action  was  brought  to  recover  the  price  of  a 
quantity  of  tie  timber  which  the  plaintiff  claimed  to  have  sold 
and  delivered  to  the  defendant.  The  plaintiff  recovered,  and 
his  judgment  having  been  affirmed  at  the  General  Term,  the 
defendant  appealed  to  this  Court. 

The  timber  is  claimed  to  have  been  delivered  under  a  written 
contract   with   the   defendant,  which   was  executed   August   2d, 


2/2  QUICK   1'.    WHEELER.  [CHA?.  i. 

1873.  It  provided  first  for  the  sale  and  delivery  by  the  plaintiff 
to  the  defendant  of  5000  feet  of  such  timber.  That  part  of  the 
contract  was  fully  performed  by  both  parties.  It  then  provided 
as  follows  :  "  And  I,  said  Wheeler,  also  agree  to  pay  said  Quick 
4^  cents  per  foot  for  from  6000  to  15,000  feet  of  same  kind  and 
quality  of  tie  timber  as  aforesaid,  and  delivered  at  the  place 
aforesaid  during  the  winter,  to  be  paid  on  June  ist,  1874." 
The  contract  was  signed  by  both  parties,  but  there  was  no  agree- 
ment on  the  part  of  the  plaintiff  to  deliver  this  last  quantity. 
The  place  of  delivery  named  in  the  contract  was  "  on  the  bank 
of  the  west  branch  of  the  Delaware  River  at  Ball's  Eddy,"  and 
there  plaintiff  delivered  the  11,355  ^^^t  of  timber  for  which  this 
recovery  was  had. 

This  contract  when  made  was  not  binding,  as  it  was  based 
upon  no  consideration.  The  plaintiff  parted  with  nothing  and 
there  was  no  mutuality.  There  was  not  the  consideration  which 
mutual  promises  give  a  contract.  The  plaintiff  did  not  bind 
himself  to  sell  and  deliver  the  tie  timber.  Hence  this  contract 
can  be  treated  only  as  a  written  offer  on  the  part  of  the  defend- 
ant to  take  and  pay  for  the  timber  upon  the  terms  stated. 
(Story  on  Sales,  §§  124,  126  ;  Chitty  on  Contracts,  15  ;  i  Par- 
sons on  Contracts  [5th  ed.],  475  ;  Tutlle  v.  Love,  7  J.  R.  470.) 
This  written  offer  could  be  revoked  at  any  time  before  perform- 
ance or  a  binding  acceptance  by  the  plaintiff.  Was  it  thus 
revoked  ?'  All  the  evidence  tending  to  show  a  revocation  or 
rescission  came  from  the  plaintiff  as  a  witness.  He  testified 
that  in  December,  1873,  after  he  had  delivered  several  thousand 
feet  of  the  timber — about  the  time  of  the  settlement  for  that 
delivered  under  the  prior  clause  in  the  contract — the  following 
conversation  took  place  between  them  :  "  He  told  me  that  he 
did  not  want  me  to  get  out  any  more  timber.  I  said  I  had 
bought  some  timber,  and  he  had  encouraged  me  to  buy  timber, 
and  had  advanced  money  to  make  payment,  and  I  had  bought 
it,  so  I  could  not  get  out  of  that,  and  I  could  not  store  it." 
Nothing  more  was  said.  The  plaintiff  then  went  on  with  the 
performance  of  the  contract,  and  between  that  date  and  March 
delivered  at  the  place  designated  in  the  contract  the  balance  of 
the  timber,  the  defendant  at  no  time  making  any  further  objec- 
tion. After  the  deliver}'  plaintiff  had  the  timber  measured  ; 
and  he  then  delivered  a  bill  of  the  measurement  at  defendant's 
store,  in  his  absence,  on  June  ist,  1874,  to  a  man  by  the  name 
of  Titus,  who  promised  to  write  to  defendant.  In  July,  plain- 
tiff saw  defendant  and  spoke  to  him  about  the  timber,  and  he 

'  A  portion  of  the  opinion  not  relating  to  this  question  has  been  omit- 
ted.—Ed. 


SEC.  l//.]  LORING  7'.    CITY   OF   BOSTON.  273 

said  that  as  soon  as  his  boys  came  home  he  would  go  and  look 
at  the  timber  ;  and  this  promise  he  repeated  afterward,  making 
no  claim  then  that  the  contract  had  been  rescinded,  or  that  he 
was  not  liable  to  pay  for  the  timber,  if  it  was  according  to  the 
contract.  Upon  all  these  facts  it  cannot  be  said  as  matter  of 
law  that  the  parties  understood  that  the  offer  was  revoked.  It 
is  quite  clear  that  the  plaintiff  did  not  so  understand  it,  and  it 
is  at  least  doubtful  if  the  defendant  so  understood  it.  It  is  true 
that  he  told  the  plaintiff  not  to  get  out  any  more  timber  ;  but 
when  he  learned  that  the  plaintiff  had  already  got  out  a  large 
quantity,  and  that  he  was  bound  for  more,  which  he  had  pur- 
chased to  perform  this  contract,  he  was  silent,  said  nothing 
more.  We  may  assume  that  he  knew  the  defendant  was  en- 
gaged in  performing  the  contract  during  the  winter  ;  and  after 
all  the  timber  was  delivered,  he  did  not  plant  himself  in  any 
way  upon  a  revocation  of  his  offer  ;  but  when  informed  that  it 
had  been  delivered,  promised  to  go  and  look  at  it.  Proof  of 
the  revocation,  under  such  circumstances,  should  have  been  un- 
equivocal and  satisfactory,  before  a  court  could  hold  as  matter 
of  law  that  the  revocation  was  established.  In  this  case,  the 
question  of  revocation,  upon  the  evidence,  the  conduct  of  the 
parties  and  the  circumstances,  was  one  for  the  jury  ;  and  there 
was  no  request  to  have  it  submitted  to  the  jury,  and  hence  there 
was  no  error  here. 

Without  more  it  is  sufficient  to  say  that  we  concur  in  the  satis- 
factory opinion  at  General  Term. 

The  judgment  should  be  affirmed  with  costs. 

All  concur. 

Judgment  affirmed. 


{^)    Termination  of  offer  by  lapse  of  time. 
WILLIAM   LORING  and  Another  v.  CITY  OF  BOSTON. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  March 

Term,  1844. 

[Reported  in  7  Metcalf  409.] 

Assumpsit  to  recover  a  reward  of  $1000,  offered  by  the  de- 
fendants for  the  apprehension  and  conviction  of  incendiaries. 
Writ  dated  September  30th,  1841. 

At  the  trial  before  Wilde,  J.,  the  following  facts  were  proved  : 
On   May   26th,    1837,   this  advertisement  was  published  in  the 


274  LORING   V.    CITY    OF   BOSTON.  [CHAP,  r. 

daily  papers  in  Boston  :  "  $500  reward.  The  above  reward  is 
offered  for  the  apprehension  and  conviction  of  any  person  who 
shall  set  fire  to  any  building  within  the  limits  of  the  city.  May 
26th,  1837.  Samuel  A.  Eliot,  Mayor."  On  May  27th,  1837, 
the  following  advertisement  was  published  in  the  same  papers  : 
"  $1000  reward.  The  frequent  and  successful  repetition  of  in- 
cendiary attempts  renders  it  necessary  that  the  most  vigorous 
efforts  should  be  made  to  prevent  their  recurrence.  In  addition 
to  the  other  precautions,  the  reward  heretofore  offered  is 
doubled.  One  thousand  dollars  will  be  paid  by  the  city  for  the 
conviction  of  any  person  engaged  in  these  nefarious  practices. 
May  27th,  1837.  Samuel  A.  Eliot,  Mayor."  These  advertise- 
ments were  continued  in  the  papers  but  about  a  week  ;  but  there 
was  no  vote  of  the  city  government,  or  notice  by  the  mayor, 
revoking  the  advertisements,  or  limiting  the  time  during  which 
they  should  be  in  force.  Similar  rewards  for  the  detection  of 
incendiaries  had  been  before  offered,  and  paid  on  the  conviction 
of  the  offenders  ;  and  at  the  time  of  the  trial  of  this  case,  a  sim- 
ilar reward  was  daily  published  in  the  newspapers. 

In  January,  1841,  there  was  an  extensive  fire  on  Washington 
Street,  when  the  Amory  House  (so  called)  and  several  others 
were  burned.  The  plaintiffs  suspected  that  Samuel  Marriott, 
who  then  boarded  in  Boston,  was  concerned  in  burning  said 
buildings.  Soon  after  the  fire  said  Marriott  departed  for  New 
York.  The  plaintiffs  declared  to  several  persons  their  intention 
to  pursue  him  and  prosecute  him,  with  the  intention  of  gaining 
the  reward  of  $1000  which  had  been  offered  as  aforesaid.  They 
pursued  said  Marriott  to  New  York,  carried  with  them  a  person 
to  identify  him,  arrested  him,  and  brought  him  back  to  Boston. 
They  then  complained  of  him  to  the  county  attorney,  obtained 
other  witnesses,  procured  him  to  be  indicted  and  prosecuted  for 
setting  fire  to  the  said  Amory  House.  And  at  the  March  Term, 
1841,  of  the  Municipal  Court,  on  the  apprehension  and  prosecu- 
tion of  said  Marriott,  and  on  the  evidence  given  and  procured 
by  the  plaintiffs,  he  was  convicted  of  setting  fire  to  said  house, 
and  sentenced  to  ten  years'  confinement  in  the  State  prison. 

William  Barnicoat,  called  as  a  witness  by  the  defendants, 
testified  that  he  was  chief  engineer  of  the  Fire  Department  in 
Boston,  in  1837,  and  for  several  years  after  ;  that  alarms  of  fire 
were  frequent  before  the  said  advertisement  in  May,  1837  ;  but 
that  from  that  time  till  the  close  of  the  year  1841  there  were  but 
few  fires  in  the  city. 

As  the  only  question  in  the  case  was,  whether  said  offer  of 
reward  continued  to  be  in  force  when  the  Amory  House  was 
burnt,    tlie  case   was   taken   from   the  jury,   by  consent   of  the 


SEC.  I/^.J  LORING   V.    CITY   OF   BOSTON.  275 

parties,  under  an  agreement  that  the  defendants  should  be 
defaulted,  or  the  plaintiffs  become  nonsuit,  as  the  full  Court 
should  decide. 

Peabody  6^  J.  P.  Rogers  for  the  plaintiffs. 

y.  Pickering  (City  Solicitor)  for  the  defendants. 

Shaw,  C.J.  There  is  now  no  question  of  the  correctness  of 
the  legal  principle  on  which  this  action  is  founded.  The  offer 
of  a  reward  for  the  detection  of  an  offender,  the  recovery  of 
property,  and  the  like,  is  an  offer  or  proposal,  on  the  part  of 
the  person  making  it,  to  all  persons,  which  any  one,  capable  of 
performing  the  service,  may  accept  at  any  time  before  it  is  re- 
voked, and  perform  the  service  ;  and  such  offer  on  one  side,  and 
acceptance  and  performance  of  the  service  on  the  other,  is  a 
valid  contract  made  on  good  consideration,  which  the  law  will 
enforce.  That  this  principle  applies  to  the  offer  of  a  reward  to 
the  public  at  large  was  settled  in  this  Commonwealth,  in 
Symmes  v.  Frazier,  6  Mass.  344,  and  it  has  been  frequently 
acted  upon,  and  was  recognized  in  the  late  case  of  Wentworth 
V.  Day,  3  Met.  352. 

The  ground  of  defence  is,  that  the  advertisement,  offering  the 
reward  of  $1000  for  the  detection  and  conviction  of  persons 
setting  fire  to  buildings  in  the  city,  was  issued  almost  four  years 
before  the  time  at  which  the  plaintiffs  arrested  Marriott  and 
prosecuted  him  to  conviction  ;  that  this  reward  was  so  offered, 
in  reference  to  a  special  emergency  in  consequence  of  several 
alarming  fires  ;  that  the  advertisement  was  withdrawn  and  dis- 
continued ;  that  the  recollection  of  it  had  passed  awaj^  ;  that  it 
was  obsolete,  and  by  most  persons  forgotten  ;  and  that  it  could 
not  be  regarded  as  a  perpetually  continuing  offer  on  the  part  of 
the  city. 

We  are  then  first  to  look  at  the  terms  of  the  advertisement,  to 
see  what  the  offer  was.  It  is  competent  to  the  party  offering 
such  reward  to  propose  his  own  terms  ;  and  no  person  can  en- 
title himself  to  the  promised  reward  without  a  compliance  with 
all  its  terms.  The  first  advertisement  offering  the  reward  de- 
manded in  this  action  was  published  March  26th,  1837,  offering 
a  reward  of  $500  ;  and  another  on  the  day  following,  increasing 
it  to  $1000.  No  time  is  inserted,  in  the  notice,  within  which 
the  service  is  to  be  done  for  which  the  reward  is  claimed.  It 
is  therefore  relied  on  as  an  unlimited  and  continuing  offer. 

In  the  first  place,  it  is  to  be  considered  that  this  is  not  an  or- 
dinance of  the  city  government,  of  standing  force  and  effect  ; 
it  is  an  act  temporary  in  its  nature,  emanating  from  the  execu- 
tive branch  of  the  city  government,  done  under  the  exigency  <  1 
a  special  occasion  indicated  by  its  terms,  and  continued   to  be 


2/6  LORING   V.    CITY   OP^   BOSTON.  [CHAP^I. 

published  but  a  short  time.  Although  not  limited  in  its  terms, 
it  is  manifest,  we  think,  that  it  could  not  have  been  intended  to 
be  perpetual,  or  to  last  ten  or  twenty  years,  or  more  ;  and  there- 
fore must  have  been  understood  to  have  some  limit.  It  was 
insisted,  in  the  argument,  that  it  had  no  limit  but  the  Statute 
of  Limitations.  But  it  is  obvious  that  the  Statute  of  Limita- 
tions would  not  operate  so  as  to  make  six  years  from  the  date 
of  the  offer  a  bar.  The  offer  of  a  reward  is  a  proposal  made  by 
one  party,  and  does  not  become  a  contract,  until  acted  upon  by 
the  performance  of  the  service  by  the  other,  which  is  the  accept- 
ance of  such  offer,  and  constitutes  the  agreement  of  minds  essen- 
tial to  a  contract.  The  six  years,  therefore,  would  begin  to  run 
only  from  the  time  of  the  service  performed  and  the  cause  of 
action  accrued,  which  might  be  ten,  or  twenty,  or  fifty  years 
from  the  time  of  the  offer,  and  would  in  fact  leave  the  offer 
itself  unlimited  by  time. 

Supposing  then  that,  by  fair  implication,  there  must  be  some 
limit  to  this  offer,  and  there  being  no  limit  in  terms,  then  by  a 
general  rule  of  law  it  must  be  limited  to  a  reasonable  time — that 
is,  the  service  must  be  done  within  a  reasonable  time  after  the 
offer  made. 

What  is  a  reasonable  time,  when  all  the  facts  and  circum- 
stances are  proved  on  which  it  depends,  is  a  question  of  law. 
To  determine  *it,  we  are  first  to  consider  the  objects  and  pur- 
poses for  which  such  reward  is  offered.  The  principal  object 
obviously  must  be,  to  awaken  the  attention  of  the  public,  to  ex- 
cite the  vigilance  and  stimulate  the  exertions  of  police  officers, 
watchmen  and  citizens  generally,  to  the  detection  and  punish- 
ment of  offenders.  Possibly,  too,  it  may  operate  to  prevent 
offences,  by  alarming  the  fears  of  those  who  are  under  tempta- 
tion to  commit  them,  by  inspiring  the  belief  that  the  public  are 
awake,  that  any  suspicious  movement  is  watched,  and  that  the 
crime  cannot  be  committed  with  impunity.  To  accomplish 
either  of  these  objects,  such  offer  of  a  reward  must  be  notorious, 
known  and  kept  in  mind  by  the  public  at  large  ;  and,  for  that 
purpose,  the  publication  of  the  offer,  if  not  actually  continued 
in  newspapers,  and  placarded  at  conspicuous  places,  must  have 
been  recent.  After  the  lapse  of  years,  and  after  the  publication 
of  the  offer  has  been  long  discontinued,  it  must  be  presumed  to 
be  forgotten  by  the  public  generally,  and  if  known  at  all,  known 
only  to  a  few  individuals  who  may  happen  to  meet  with  it  in  an 
old  newspaper.  The  expectation  of  benefit,  then,  from  such  a 
promise  of  reward,  must  in  a  great  measure  have  ceased.  In- 
deed, every  consideration  arising  from  the  nature  of  the  case 
confirms  the  belief  that  such  offer  of   reward,  for  a  special  ser- 


SEC.  l/l.]  LORING   7'.    CITY   OF   BOSTON.  277 

vice  of  this  nature,  is  not  unlimited  and  perpetual  in  its  dura- 
tion, but  must  be  limited  to  some  reasonable  time.  The  diffi- 
culty is  in  fixing  it.  One  circumstance,  perhaps  a  slight  one, 
is,  that  the  act  is  done  by  a  board  of  officers,  who  themselves 
are  annual  officers.  But  as  they  act  for  the  city,  which  is  a 
permanent  body,  and  exercise  its  authority  for  the  time  being, 
and  as  such  a  reward  might  be  offered  near  the  end  of  the  year, 
we  cannot  necessarily  limit  it  to  the  time  for  which  the  same 
board  of  mayor  and  aldermen  have  to  serve  ;  though  it  tends 
to  mark  the  distinction  between  a  temporary  act  of  one  branch 
and  a  permanent  act  of  the  whole  city  government. 

We  have  already  alluded  to  the  fact  of  the  discontinuance  of 
the  advertisement,  as  one  of  some  weight.  It  is  some  notice  to 
the  public  that  the  exigency  has  passed,  for  which  such  offer  of 
a  reward  was  particularly  intended.  And  though  such  discon- 
tinuance is  n,ot  a  revocation  of  the  offer,  it  proves  that  those 
who  made  it  no  longer  hold  it  forth  conspicuously  as  a  continu- 
ing offer  ;  and  it  is  not  reasonable  to  regard  it  as  a  continuing 
offer  for  any  considerable  term  of  time  afterward. 

But  it  is  not  necessary,  perhaps  not  proper,  to  undertake  to 
fix  a  precise  time,  as  reasonable  time  ;  it  must  depend  on  many 
circumstances.  It  is  somewhat  analogous  to  the  case  of  notes 
payable  on  demand,  where  the  question  formerly  was,  within 
what  time  such  note  must  be  presented,  and,  in  case  of  dis- 
honor, notice  be  given,  in  order  to  charge  the  indorser.  In  the 
earliest  reported  case  on  the  subject.  Field  v.  Nickerson, 
13  Mass.  131,  the  Court  went  no  farther  than  to  decide  that 
eight  months  was  not  a  reasonable  time  for  that  purpose. 

Under  the  circumstances  of  the  present  case,  the  Court  are  of 
opinion,  that  three  years  and  eight  months  is  not  a  reasonable 
time  within  which,  or  rather  to  the  extent  of  which,  the  offer  in 
question  can  be  considered  as  a  continuing  offer  on  the  part  of 
the  city.  In  that  length  of  time,  the  exigency  under  which  it 
was  made  having  passed,  it  must  be  presumed  to  have  been  for- 
gotten by  most  of  the  officers  and  citizens  of  the  community, 
and  cannot  be  presumed  to  have  been  before  the  public  as  an 
actuating  motive  to  vigilance  and  exertion  on  this  subject  ;  nor 
could  it  justly  and  reasonably  have  been  so  understood  by  the 
plaintiffs.  We  are  therefore  of  opinion,  that  the  offer  of  the 
city  had  ceased  before  the  plaintiffs  accepted  and  acted  upon  it 
as  such,  and  that  consequently  no  contract  existed  upon  which 
this  action,  founded  on  an  alleged  express  promise,  can  be 
maintained 

Plaintiffs  nonsuit. 


2/8  VICTORIA   HOTEL   CO.   V.    MONTEFIORE.        [CHAP.  I. 


RAMSGATE  VICTORIA   HOTEL   COMPANY,  Limited,  v. 
MONTEFIORE. 

SAME  V.  GOLDSMID. 

In  the  Exchequer,  January  17,  1866. 

[Reported  in  Law  Reports,  i  Exchequer  109.] 

These  were  actions  for  non-acceptance  of  shares,  and  for  calls, 
and  cross-actions  for  recovery  of  deposit,  and  for  damages  for 
not  duly  allotting  shares,  turned  into  a  special  case. 

The  company  was  completely  registered  June  6th,  1864.  By 
the  second  article  of  association  it  was  provided  that  the  com- 
pany should  continue  incorporated,  notwithstanding  that  the 
whole  number  of  shares  in  the  company  might  not  be  subscribed 
for  or  issued,  and  might  commence  and  carry  on  business  when, 
in  the  judgment  of  the  board,  a  sufficient  number  of  shares  had 
been  subscribed  to  justify  them  in  so  doing. 

The  prospectus  of  the  company  contained  the  following 
words  :  "  Deposit  on  application  j[^\  per  share,  and  j[^Ji^  on  allot- 
ment." And  it  was  further  stated  that  if  no  allotment  were 
made  the  deposit  would  be  returned. 

The  defendant,  Montefiore,  on  June  8th,  1864,  filled  up, 
signed,  and  sent  to  the  directors  the  printed  form  of  application 
annexed  to  the  prospectus,  which  was  as  follows  : 

"  Gentlemen  :  Having  paid  to  your  bankers  the  sum  of  ;^5o, 
I  hereby  request  you  will  allot  me  50  shares  of  ^^20  each  in  the 
Ramsgate  Victoria  Hotel  Company  (Limited)  ;  and  I  hereby 
agree  to  accept  such  shares,  or  any  smaller  number  that  may 
be  allotted  to  me,  to  pay  the  deposit  and  calls  thereon,  and  to 
sign  the  articles  of  association  of  the  company  at  such  times 
and  in  such  manner  as  you  may  appoint." 

The  defendant  had  so  paid  the  sum  of  ^50,  and  had  taken 
from  the  bankers  the  following  receipt  : 

"  Received,  June  8th,  1864,  on  account  of  the  directors  of  the 
Ramsgate  Victoria  Hotel  Company  (Limited),  the  sum  of  ;!^5o, 
being  the  deposit  paid  in  accordance  with  the  terms  of  the  pro- 
spectus, on  an  application  for  an  allotment  of  50  shares  in  the 
same  undertaking." 

On  August  17th  the  secretary  made  out  and  submitted  to  the 
directors  a  list  of  applicants  for  shares  up  to  that  time,  in  which 


SEC.  lA.]         VICTORIA   HOTEL   CO.   V.    MONTEFIORE.  279 

appeared  the  name  of  the  defendant  for  50  shares.  The  list 
was  headed  "  List  of  subscribers,  August  17th,  1864." 

On  November  2d  the  secretary  again  submitted  a  list  of  sub- 
scribers to  the  directors,  but  they  did  not  deem  it  advisable  to 
proceed  to  an  immediate  allotment,  and  entered  a  minute  to 
that  effect.  On  November  8th  the  defendant,  having  received 
no  communication  from  the  company,  withdrew  his  application. 

On  November  23d  the  secretary  prepared  another  list  of  sub- 
scribers, including  the  defendant's  name.  The  directors  made 
the  first  call,  and  by  their  direction  the  secretary  wrote  the  fol- 
lowing letter  to  the  defendant  : 

"  Sir  :  I  am  instructed  by  the  directors  to  acquaint  you  that, 
in  compliance  with  your  application,  they  have  allotted  to  you 
50  shares  in  this  company,  and  have  entered  your  name  in  the 
register  of  shareholders  for  the  same  ;  and  I  have  to  request 
that  you  will  pay  the  balance  of  the  first  call,  as  noted  below, 
on  or  before  December  15th,  to  the  London  and  County  Bank, 
21  Lombard  Street,  E.G." 

The  defendant  having  refused  to  accept  the  shares  or  pay  the 
call,  the  company  brought  the  present  action  against  him. 

It  was  contended  by  the  company  that  the  last-mentioned  list 
and  those  previously  mentioned,  or  one  of  them,  constituted  a 
sufficient  register  of  shares  within  the  Companies'  Act,  1862. 

The  directors  had  entered  into  an  agreement  for  the  purchase 
of  the  site  of  the  hotel,  paid  the  deposit,  and  commenced 
operations. 

The  facts  with  respect  to  Goldsmid  were  the  same,  except 
that  he  had  never  withdrawn  his  application,  nor  given  any 
notice  of  his  intention  to  do  so. 

Me//is/i,  Q.C.  {Digby  with  him)  for  the  company. 

M.  Chambers^  Q-C.  {Cohen  with  him)  for  the  defendants,  were 
not  called  on. 

The  Court  (Pollock,  C.B.,  Martin,  Channell,  Pigott, 
BE.),  observed  that  in  both  the  cases  cited  the  question  was  as 
to  the  liability  of  an  applicant  for  shares  as  a  contributory,  and 
they  referred  to  the  judgment  of  Turner,  L.J.,  in  Ex  parte 
Bloxam,'  as  explaining  the  ratio  decidejidi  in  that  case  ;  they  held 
that  there  was  no  allotment  till  November  23d,  that  the  allot- 
ment must  be  made  within  reasonable  time,  and  that  the  interval 
from  June  to  November  was  not  reasonable,  and  therefore  gave 
judgment  for  both  the  defendants. 

J  33  L.  J.  (Ch.)  575-576. 


I 


280  MACLAY   V.    HARVEY.  [CHAP.  I. 

ELIZABETH    MACLAY  v.  JOHN    HARVEY. 

In  the  Supreme   Court  of   Illinois,   September  Term,   1878. 

[Reported  zn  90  Illinois  Reports  525.] 

Appeal  from  the  Circuit  Court  of  Warren  County  ;  the  Hon. 
Arthur  A.  Smith,  J.,  presiding. 

John  J.  Glenn  and  J.  M.  Kirkpatrick  for  the  appellant. 

Stewart,  Phelps  &^  Grier  for  the  appellee. 

ScHOLFiELD,  J.,  delivered  the  opinion  of  the  Court. 

Appellant  brought  assumpsit  against  appellee,  in  the  Court 
below,  on  an  alleged  contract  whereby  the  latter  employed  the 
former  to  take  charge  of  the  millinery  department  of  his  store 
in  Monmouth,  in  this  State,  for  the  season  commencing  in  April 
and  ending  in  July,  in  the  year  1876,  and  to  pay  her  therefor 
$15  per  week. 

The  judgment  was  in  favor  of  appellee,  and  appellant  now 
assigns  numerous  errors  as  grounds  for  its  reversal. 

In  our  opinion  the  case  may  be  properly  disposed  of  by  the 
consideration  of  a  single  question.  Appellant's  right  of  re- 
covery is  based  entirely  upon  an  alleged  special  contract,  and 
unless  there  was  such  a  contract,  the  judgment  below  is  right, 
however  erroneous  may  have  been  the  ruhngs  under  which  it 
was  obtained. 

After  some  preliminary  correspondence,  which  is  not  before 
us,  appellant,  who  was  then  residing  in  Peoria,  received  froio 
appellee  the  following,  by  mail  : 

"  Monmouth,  III.,  March  9,  1876. 
**  Miss  L.  Maclay,  Peoria,  111.: 

"  I  have  been  trying  to  find  your  address  for  some  time,  and 
was  informed  last  evening  that  you  were  in  Peoria.  I  write  to 
inquire  if  you  intend  to  work  at  millinery  this  season,  and  if 
you  have  made  any  arrangements  or  not.  If  you  have  not,  can 
you  take  charge  of  my  stock  this  season,  and  if  we  can  agree  I 
would  want  you  for  a  permanent  trimmer. 

"  Please  notify  me  by  return  mail,  and  terms,  and  we  can 
confer  further. 

"  Yours  in  haste, 

"  John  Harvey. 

*'  Formerly  Jno.  Harvey  &  Co.,  when  you  trimmed  for  me." 
Appellant's  reply  to  this  is  not  before  us.     She  says  she  stated 


SEC.  l/l.]  MACLAY    Z'.    HARVEY.  28 1 

her  terms  in  it,  and  thereafter  appellee  wrote  her  the  following;, 
which  she  also  received  by  mail  : 

"  Monmouth,  III.,  March  21,  1876. 
"  Miss  L.  Maclay,  Peoria,  111.: 

"  Your  favor  was  received  in  due  time,  and  contents  noted. 
You  spoke  of  wages  at  $15  per  week  and  fare  one  way.  You 
will  want  to  go  to  Chicago,  I  presume,  and  trim  a  week  or  ten 
days. 

"I  would  like  for  you  to  trim  at  H.  W.  Wetherell's  or  at 
Keith  Bros.  I  will  give  you  $15  per  week  and  pay  your  fare 
from  Chicago  to  Monmouth,  and  pay  you  the  above  wages  for 
your  actual  time  here  in  the  house  at  that  rate  per  season. 

"  I  presume  that  the  wholesale  men  will  allow  you  for  your 
time  in  the  house.  You  will  confer  a  favor  by  giving  me  your 
answer  by  return  mail. 

"  Yours, 

"  John  Harvey." 

Appellant  says  she  received  this  in  the  afternoon,  and  replied 
the  next  day  by  postal  card,  addressed  to  appellee,  at  Mon- 
mouth, as  follows  : 

"  Peoria,  March  23. 
"  Mr.  Harvey  : 

"  Yours  was  promptly  received,  and  I  will  go  up  to  Cliicago 
next  week,  and  when  my  services  are  required  you  will  let  me 
know. 

"  Very  respectfully, 

"  L.  Maclay." 

Appellant  did  not  place  this  in  the  post-office  herself,  but  she 
says  she  gave  it  to  a  boy  who  did  errands  about  the  house  of 
her  sister,  with  whom  she  was  then  staying,  directing  him  to 
place  it  in  the  office.  The  postmark  on  the  card,  which  is  shown 
to  be  always  placed  on  mail  matter  the  same  day  it  is  put  in  the 
office,  shows  that  the  card  was  not  mailed  until  March  25th. 

Appellee  receiving  no  reply  from  appellant  on  Monday  morn- 
ing, March  27th,  went  to  Peoria  and  endeavored  to  engage 
another  milliner,  and  failing  in  this,  endeavored  to  find  appel- 
lant, but  was  unable  to  do  so,  and  then  returned  to  Monmouth, 
when  he  received  appellant's  postal  card,  which  had  come  to 
the  office  there  during  his  absence.  On  Wednesday  night,  of 
the  same  week,  appellee  left  Monmouth  for  Chicago,  arriving 
at  the  last-named  place  on  the  following  morning,  Thursday, 
March  30th.  Finding  that  appellant  was  neither  at  Keith  Bros, 
nor  at  Wetherell's,  he  proceeded  to  employ  another  milliner. 


282  MACLAY   V.    HARVEY.  [CHAP.  I. 

and  on  the  same  day,  and  before  leaving  Chicago,  wrote  and 
mailed  a  letter  directed  to  appellant's  address  at  Peoria,  notify- 
ing her  of  that  fact ;  but  this  letter,  in  consequence  of  appel- 
lant's absence  from  Peoria,  she  did  not  receive  for  some  time 
afterward. 

The  millinery  season  commences  from  April  5th  to  loth,  and 
ends  from  June  20th  to  July  4th,  as  shown  by  the  evidence. 
Appellee  had  not  laid  in  his  spring  stock  when  he  was  corre- 
sponding with  appellant,  and  he  started  to  New  York,  from 
Chicago,  for  that  purpose,  on  the  evening  of  the  day  on  which 
he  addressed  the  letter  to  appellant  notifying  appellant  of  his 
employment  of  another  milliner,  the  evening  of  March  30th. 
Appellant  says  she  left  Peoria  for  Chicago  on  Friday,  which 
must  have  been  March  31st.  On  arriving  at  Chicago,  she  went 
to  Wetherell's,  and,  failing  to  get  employment  there,  did  not 
go  to  Keith  Bros.,  but  went  to  another  house  in  the  same  line 
of  business,  where  she  remained  some  days,  and  on  April  8th 
she  notified  appellee,  by  letter,  that  she  was  sufficiently  in- 
formed as  to  the  "  new  ideas  of  trimming"  and  was  ready  to 
enter  his  service.  Appellee  replied  to  this,  reciting  the  dis- 
appointments he  claimed  to  have  met  with  on  her  account,  and 
again  notifying  her  that  he  did  not  require  her  services. 

If  a  contract  was  consummated  between  the  parties,  it  was 
by  the  mailing  of  appellant's  postal  card  on  March  25th.  Ap- 
pellee's letter  of  the  21st  cannot  be  regarded  as  the  consumma- 
tion of  a  contract,  because  it  restates  the  terms  with  some 
variation,  though  it  may  be  but  slight,  and  requires  an  accept- 
ance upon  the  terms  thus  stated.  This,  until  unequivocally 
accepted,  was  only  a  mere  proposition  or  offer.  Hough  v. 
Brown,  19  N.  Y.  (5  Smith)  iii. 

It  was  said  by  the  Lord  Chancellor,  in  Dunlop  v.  Higgins, 
first  House  of  Lord's  cases,  at  page  387  :  "  Where  an  individual 
makes  an  offer  by  post,  stipulating  for,  by  the  nature  of  the 
business  having  the  right  to  expect,  an  answer  by  return  of 
post,  the  offer  can  only  endure  for  a  limited  time,  and  the 
making  of  it  is  accompanied  by  an  implied  stipulation  that  the 
answer  shall  be  sent  by  return  of  post.  If  that  implied  stipu- 
lation is  not  satisfied,  the  person  making  the  offer  is  released 
from  it.  When  a  person  seeks  to  acquire  a  right,  he  is  bound 
to  act  with  a  degree  of  strictness,  such  as  may  not  be  required 
where  he  is  only  endeavoring  to  excuse  himself  from  a  liability." 
This  is  regarded  as  a  leading  case  on  the  question  of  acceptance 
of  contract  by  letter,  and  the  language  quoted  we  regard  as  a 
clear  and  accurate  statement  of  the  law,  as  applicable  to  the 
present  case.     It  is  clear  here,  that  the  nature  of  the  business 


SEC.  I/^.]  MACLAV   t'.    HARVEY.  283 

demanded  a  prompt  answer,  and  the  words  "  you  will  confer  a 
favor  by  giving  me  your  answer  by  return  mail"  do,  in  effect, 
"  stipulate"  for  an  answer  by  return  mail.  Taylor  z'.  Rennie 
£fa/.,  35  Barb.  272. 

The  evidence  shows  that  there  were  two  daily  mails  between 
Peoria  and  Monmouth — one  arriving  at  Monmouth  at  11  o'clock 
A.M.,  and  the  other  at  6  o'clock  p.m.,  and  it  did  not  require 
more  than  one  day's  time  between  the  points.  Appellee's  letter 
to  appellant  making  the  offer,  it  will  be  remembered,  bears  date 
March  21st.  Assuming  the  date  of  appellant's  postal  card 
(which,  she  says,  was  written  on  the  morning  after  she  received 
appellee's  letter)  to  be  correct,  she  received  appellant's  letter 
on  the  evening  of  the  22d.  Appellee  was,  therefore,  entitled  to 
expect  a  reply  mailed  on  the  23d,  which  he  ought  to  have  re- 
ceived on  that  day,  or,  at  farthest,  by  the  morning  of  the  24th  ; 
but  appellant's  reply  was  not  mailed  until  the  25th.  It  does 
not  relieve  appellant  of  fault  that  she  gave  the  postal  card  to  a 
boy  on  the  23d,  to  have  him  mail  it.  Her  duty  was  not  to  place 
an  answer  in  private  hands,  but  in  the  post-office.  The  boy  was 
her  agent,  not  that  of  appellee,  and  his  negligence  in  mailing 
the  postal  card  was  her  negligence.' 

The  question  of  whether  it  would  not  have  equally  well  sub- 
served appellee's  object  had  he  treated  the  postal  card  of  appel- 
lant as  the  consummation  of  a  contract,  is  irrelevant.  Appellant 
seeks  to  recover  upon  the  strict  letter  of  a  special  contract,  and 
it  is,  therefore,  incumbent  on  her  to  prove  such  contract.  It  is 
required  of  her,  as  we  have  seen,  to  prove  an  acceptance  of 
appellee's  offer  within  the  time  to  which  it  was  limited — that  is 
to  say,  by  the  placing  in  the  post-office  of  an  answer  unequivo- 
cally accepting  the  offer  in  time  for  the  return  mail,  which  she 
did  not  do.  Appellee  was,  thereafter,  under  no  obligation  to 
regard  the  contract  as  closed.  He  might,  it  is  true,  have  done 
so,  but  he  was  not  legally  bound  in  that  respect,  nor  was  he 
legally  bound  to  notify  appellant  that  her  acceptance  had  not 
been  signified  within  the  time  to  which  his  offer  was  limited. 
She  is  legally  chargeable  with  knowledge  that  her  acceptance 
was  not  in  time,  and  in  order  to  fix  a  liability  thereby  upon 
appellee,  it  was  incumbent  upon  her,  before  assuming  that 
appellee  waived  this  objection,  to  ascertain  that  he  in  fact  did  so. 

Appellee  was  led,  by  the  postal  card  of  appellant,  to  believe 

^  The  street  boxes  and  street  delivery  are  a  legal  part  of  the  post-office 
system,  and  a  letter  deposited  in  one  of  these  must  be  considered  as  being 
delivered  at  the  post-office.  Abb.  Trial  Ev.  433-434  ;  Bank  7/.  De  Groot, 
7  Hun  210  ;  Pearce  7/.  Langfit,  101  Pa.  St.  507. — Morse,  J.,  Wood  v.  Calnan, 
61  Mich.  402,  411. — Ed. 


284  MACLAY  V.    HARVEY.  [CHAP.  I. 

that  he  would,  when  he  arrived  at  Chicago  on  Thursday,  find 
her  either  at  Wetherell's  or  Keith  Bros.  Had  he  done  so,  it 
was  his  intention  to  treat  the  contract  as  closed  ;  but  she  was 
not  there,  and  this  intention  was  not  acted  upon,  and  so  is  to 
be  considered  as  if  it  had  never  existed.  Appellee,  not  finding 
appellant  at  Wetherell's  or  Keith  Bros.,  as  she  had  led  him  to 
believe  he  would,  had  no  reason  to  assume  that  she  was,  in 
good  faith,  acting  upon  the  assumption  that  her  postal  card  had 
closed  the  contract,  and  he  cannot,  therefore,  be  held  estopped 
from  denying  that  it  was  not  posted  in  time.  In  view  of  the 
lateness  of  the  season,  and  the  danger  to  appellee's  business 
from  delay,  of  all  which  appellant  was  aware,  it  cannot  be  said 
appellee  acted  with  undue  haste  in  engaging  another  milliner. 

The  judgment  is  affirmed. 

Judgment  affirmed. 

Dickey,  J.,  dissenting  : 

I  cannot  concur  in  this  decision.  T  think  the  special  contract 
was  made  and  assented  to  by  both  parties.  I  concede  that  the 
delay  of  Miss  Maclay  in  mailing  her  postal  card  was  such  that 
the  mere  mailing  of  it  on  Saturday,  March  25th,  did  not  bind 
Harvey  or  consummate  a  contract.  I  agree  that  on  Monday 
evening  (the  27th),  when  he  received  that  card,  he  had,  at  that 
time,  the  right,  by  law,  to  reject  it,  because  it  came  too  late, 
but,  in  my  judgment,  he  ivaived  th.a.t  right.  In  the  language  of 
the  governing  opinion,  appellee  was  "  under  no  obligation  to 
regard  the  contract  as  closed.  He  j/iig/it,  it  is  true,  have  done 
so" — that  is,  he  might  have  "  treated  the  postal  card  as  the 
consummation  of  a  contract." 

The  point  on  which  I  differ  from  my  brethren  is  this  :  I  think 
the  evidence  tends  to  show  that  he  did,  in  fact,  waive  the  delay  ; 
that  he  did,  in  fact,  treat  "  the  postal  card  as  the  consumiTiation 
of  a  contract  ;"  that  he  did  "  regard  the  contract  as  closed." 
He  received  on  Monday  evening  her  acceptance  of  his  offer, 
with  a  statement,  dated  on  the  Thursday  previous,  that  she 
would  (in  pursuance  of  the  supposed  contract)  "go  up  to 
Chicago  next  week."  If  he  intended  to  avail  himself  of  her 
delay  in  sending  her  answer,  and  for  that  cause  refuse  to  treat 
the  contract  as  closed,  it  was  his  duty  to  notify  her  at  once  of 
his  intention  to  do  so.  He  remained  silent  three  whole  days, 
and  permitted  her  to  make  her  journey  to  Chicago  on  the  faith 
of  the  supposed  contract.  Even  had  Harvey  not  intended  to 
treat  this  as  a  contract  consummated,  his  neglect  to  so  notify 
her  ought  to  estop  him  from  saying  he  did  not  waive  all  objec- 
tion on  account  of  her  delay  in  answering. 

It  is  true,  one  cannot,  on  his  own  mere  motion,  impose  upon 


I 


SEC.  l/i.]  MACLAY   V.    HARVEY.  28$ 

another,  without  his  consent,  the  duty  of  rejecting  an  offer.  In 
such  case,'  the  failure  to  reject  an  offer  must  not  be  held  to  be 
an  acceptance.  But  in  this  case,  special  relations,  as  negotia- 
tors, had  been  established  between  these  parties,  at  the  instance 
of  Harvey.  The  surroundings  were  such  that  common  honesty 
demanded  of  him  that  he  should  notify  her  at  once  if  he  in- 
tended to  object  to  her  acceptance  of  his  offer  on  the  ground 
that  it  came  too  late.  Not  only  was  he  silent,  but  he  did, 
affirmatively,  treat  the  contract  as  consummated.  He  started 
to  Chicago  on  Wednesday  evening,  two  days  after  he  received 
her  postal  card,  as  he  testifies,  "  expecting  to  find  Miss  Maclay 
in  Chicago,"  and  intending  to  confer  with  her  about  the  busi- 
ness which  was  the  subject  of  the  contract.  The  expectation 
that  he  would  meet  her  in  Chicago  was  founded  on  the  fact  that 
he  supposed  she  regarded  the  contract  complete,  and  that  she 
would,  in  pursuance  thereof,  be  in  Chicago. 

A  contract  consists  in  the  meeting  of  two  minds  at  the  same 
time  on  the  same  terms,  and  so  made  manifest  to  each.  The 
proof  tends  to  show,  that  on  Wednesday,  when  Harvey  started 
to  Chicago,  he  regarded  the  contract  as  closed,  and  that  at  that 
time  Miss  Maclay,  also  at  Peoria,  regarded  the  contract  as  made 
and  complete  ;  and  it  also  plainly  shows,  that  Miss  Maclay 
understood  that  Harvey  was  consenting  thereto,  and  at  the 
same  time  Harvey  well  understood  that  she  was  consenting 
thereto.  He  thought  he  had  hired  a  trimmer — she  thought  she 
had  contracted  for  employment  as  such. 

Had  Harvey  found  Miss  Maclay  at  Chicago,  and  had  she 
there  at  once  refused  to  perform  the  contract,  and  had  she 
thereby  compelled  him,  at  increased  expense,  to  hire  another 
trimmer,  Harvey  could,  doubtless,  have  had  an  action  against 
her  for  a  breach  of  the  contract.  If  she  were  bound,  he  ought 
also  to  be  held  bound  by  this  contract. 

It  is  suggested,  that  the  failure  of  Miss  Maclay  to  be  found  in 
Chicago  on  Thursday,  in  some  way  gave  Harvey  the  right  to 
cease  treating  this  contract  as  closed.  It  is  true,  as  a  matter  of 
fact,  that  Harvey  expected  Miss  Maclay  would  be  in  Chicago 
on  Thursday,  preparing  to  execute  the  contract.  It  was  no 
fault  of  hers  that  she  was  not  there  on  that  day.  She  had  writ- 
ten the  week  previous,  saying,  "  I  will  go  up  to  Chicago  next 
week."  She  kept  her  promise.  She  arrived  at  Chicago  on 
Friday,  March  31st.  She  had  no  intimation  that  Harvey  ex- 
pected to  meet  here  there,  or  intended  to  go  there  at  all.  She 
was  under  no  obligation  to  be  there  before  Friday,  and  I  cannot 
perceive  how  that  fact  can  operate  to  release  Harvey  from  what 
I  regard  as  a  binding  contract. 


286  HORNE   V.   NIVER.  [CHAP.  I, 


DANIEL   W.  HORNE  and  Another  v.  W.  K.  NIVER  and 

Another. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
February  25,  1897. 

[Reported  m  168  Massachusetts  Reports  4.] 

Contract  for  breach  of  an  agreement  to  sell  a  certain  quan- 
tity of  coal.  Trial  in  the  Superior  Court,  without  a  jury,  before 
Blodgett,  J.,  who  found  for  the  defendants  ;  and  the  plaintiffs 
alleged  exceptions.  The  facts  material  to  the  point  decided 
appear  in  the  opinion. 

W.  H.  Bent  for  the  plaintiffs. 

B.  L.  M.  Tower  for  the  defendants. 

Holmes,  J.  This  is  an  action  on  an  alleged  contract  to  sell 
400  tons  of  coal  at  $2.50  a  ton.  On  July  17th,  1895,  the  defend- 
ants wrote  to  the  plaintiffs,  offering  "  a  very  low  figure  on  a 
small  lot  of  our  Columbia  coal  from  Salem,"  The  letter  con- 
tinued :  "  We  beg  to  quote  you  $2.50  on  cars  at  that  place,  and 
should  you  deem  it  wise  to  favor  us  with  an  order  of  500  or 
600  tons,  kindly  wire  us  at  our  expense  on  receipt  of  this.''  On 
July  19th  the  plaintiffs  replied,  ordering  400  tons.  The  presid- 
ing judge,  against  the  plaintiffs'  request  and  exception,  ruled 
that  the  answer  was  not  in  time  to  constitute  a  good  accept- 
ance, and  found  as  a  fact  that  the  offer  was  not  accepted  accord- 
ing to  its  terms.  The  ruling  was  clearly  right  as  applied  to  the 
written  offer  alone,  since  the  offer  did  not  purport  to  extend 
beyond  the  time  for  a  reply  by  telegraph.  Eliason  v.  Henshaw, 
4  Wheat.  225  ;  Maclay  v.  Harvey,  90  111.  525  ;  and  so  far  as 
appears  the  finding  was  justified.  Minneapolis  &  St.  Louis 
Railway  v.  Columbus  Rolling  Mill,  119  U.  S.  149,  152.  There 
was  conflicting  evidence  of  some  conversation  between  the  two 
letters,  which  is  relied  on  as  showing  that  the  offer  was  treated 
as  open  ;  but  as  the  judge  found  that  the  only  oral  agree- 
ment made  was  conditional  upon  the  coal  not  having  been  all 
disposed  of,  as  in  fact  it  had  been,  the  talk  cannot  help  the 
plaintiffs. 

The  finding  just  mentioned  made  the  plaintiffs'  other  requests 
for  rulings  as  to  a  verbal  extension  of  time  or  consent  to  an 
acceptance  on  July  19th  immaterial. 

Exceptions  overruled. 


SEC.  I/.]  HYDE   Z'.    WRENCH.  28/ 

(/)  Termination  of  offer  by  counter  offer  or  modified  acceptance. 
HYDE  V.   WRENCH. 

In    Chancery,   before    Lord   Langdale,  M.R.,  December  8, 

1840. 

[Reported  in  3  Beavan  334. J 

This  case  came  on  upon  general  demurrer  to  a  bill  for  specific 
performance,  which  stated  to  the  effect  following  : ' 

The  defendant  being  desirous  of  disposing  of  an  estate, 
offered,  by  his  agent,  to  sell  it  to  the  plaintiff  for  ;^i2oo,  which 
the  plaintiff,  by  his  agent,  declined  ;  and  on  June  6th  the  de- 
fendant wrote  to  his  agent  as  follows  :  "  I  have  to  notice  the 
refusal  of  your  friend  to  give  me  ;^i2oo  for  my  farm  ;  I  will 
only  make  one  more  offer,  which  I  shall  not  alter  from — that  is, 
^1000  lodged  in  the  bank  until  Michaelmas,  when  title  shall  be 
made  clear  of  expenses,  land  tax,  etc.  I  expect  a  reply  by  re- 
turn, as  I  have  another  application."  This  letter  was  forwarded 
to  the  plaintiff's  agent,  who  immediately  called  on  the  defend- 
ant ;  and,  previously  to  accepting  the  offer,  offered  to  give  the 
defendant  ^^950  for  the  purchase  of  the  farm,  but  the  defendant 
wished  to  have  a  few  days  to  consider. 

On  June  nth  the  defendant  wrote  to  the  plaintiff's  agent  as 
follows  :  "  I  have  written  to  my  tenant  for  an  answer  to  certain 
inquiries,  and  the  instant  I  receive  his  reply  will  communicate 
with  you,  and  endeavor  to  conclude  the  prospective  purchase  of 
my  farm.  I  assure  you  I  am  not  treating  with  any  other  person 
about  said  purchase." 

The  defendant  afterward  promised  he  would  give  an  answer 
about  accepting  the  jQgSo  for  the  purchase  on  June  26th  ;  and 
on  the  27th  he  wrote  to  the  plaintiff's  agent,  stating  he  was 
sorry  he  could  not  feel  disposed  to  accept  his  offer  for  his  farm 
at  Luddenham  at  present. 

This  letter  being  received  on  June  29th,  the  plaintiff's  agent 
on  that  day  wrote  to  the  defendant  as  follows  :  "  I  beg  to 
acknowledge  the  receipt  of  your  letter  of  the  27th  instant  inform- 
ing me  that  you  are  not  disposed  to  accept  the  sum  of  ^950  for 
your  farm  at  Luddenham.  This  being  the  case,  I  at  once  agree 
to  the  terms  on  which  you  offered  the  farm — viz.,  ;^iooo  through 
your  tenant,  Mr.  Kent,  by  your  letter  of  the  6th  instant.  I  shall 
be  obliged  by  your  instructing  your  solicitor  to  communicate 
with  me  without  delay,  as  to  the  title,  for  the  reason  which  I 
mentioned  to  you." 


288  STEVENSON,   JAQUES   &   CO.   V.    McLEAN.        [CHAP.  I. 

The  bill  stated  that  the  defendant  "  returned  a  verbal  answer 
to  the  last-mentioned  letter,  to  the  effect,  he  would  see  his 
solicitor  thereon  ;"  and  it  charged  that  the  defendant's  offer  for 
sale  had  not  been  withdrawn  previous  to  its  acceptance. 

To  this  bill,  filed  by  the  alleged  purchaser  for  a  specific  per- 
formance, the  defendant  filed  a  general  demurrer. 

Kindersley  and  Keene  in  support  of  the  demurrer. 

Pemberton  and  Freeling  contra. 

Master  of  the  Rolls.  Under  the  circumstances  stated  in 
this  bill,  I  think  there  exists  no  valid  binding  contract  between 
the  parties  for  the  purchase  of  the  property.  The  defendant 
offered  to  sell  it  for^iooo,  and  if  that  had  been  at  once  uncon- 
ditionally accepted,  there  would  undoubtedly  have  been  a  per- 
fect binding  contract  ;  instead  of  that,  the  plaintiff  made  an 
offer  of  his  own,  to  purchase  the  property  for  ;i^95o,  and  he 
thereby  rejected  the  offer  previously  made  by  the  defendant. 
I  think  that  it  was  not  afterward  competent  for  him  to  revive 
the  proposal  of  the  defendant,  by  tendering  an  acceptance  of  it  ; 
and  that,  therefore,  there  exists  no  obligation  of  any  sort  be- 
tween the  parties  ;  the  demurrer  must  be  allowed. 


STEVENSON,  JAQUES  &  CO.  v.  McLEAN. 

In  the    High    Court  of   Justice,  Queen's   Bench  Division, 

May  25,  1880. 

[Reported  in  Law  Reports,  5  Queen's  Bench  Division  346.] 

Further  consideration  before  Lush,  J.  The  facts  and  argu- 
ments sufficiently  appear  from  the  judgment. 

JVaddy,  Q.C.,  and  Hugh  Shield  ior  the  plaintiffs. 

Cave.,  Q.C.,  and  Wormald  ior  the  defendant. 

Cur.  adv.  vult. 

Lush,  J.  This  is  an  action  for  non-delivery  of  a  quantity  of 
iron  which  it  was  alleged  the  defendant  contracted  to  sell  to 
the  plaintiffs  at  40J.  per  ton,  net  cash.  The  trial  took  place 
before  me  at  the  last  assizes  at  Leeds,  when  a  verdict  was  given 
for  the  plaintiffs  for  ^1900,  subject  to  further  consideration  on 
the  question  whether,  under  the  circumstances,  the  correspond- 
ence between  the  parties  amounted  to  a  contract,  and  subject 
also,  if  the  verdict  should  stand,  to  a  reference,  if  required  by 
the  defendant,  to  ascertain  the  amount  of  damages.  The  ques- 
tion of  law  was  argued  before  me  on  May  7th  last. 


SEC.  I/.]  STEVENSON,   JAQUES   &   CO.    V.    McLEAN.  2S9 

The  plaintiffs  are  makers  of  iron  and  iron  merchants  at  Mid- 
dlesborough  The  defendant  being  possessed  of  warrants  for 
iron,  which  he  had  originally  bought  of  the  plaintiffs,  wrote  on 
September  24tli  to  the  plaintiffs  from  London,  where  he  carries 
on  his  business  :  "  I  see  that  No.  3  has  been  sold  for  immediate 
delivery  at  39^.,  wliich  means  a  higher  price  for  warrants. 
Could  you  get  me  an  offer  for  the  whole  or  part  of  my  warrants  ? 
I  have  3800  tons,  and  the  brands  you  know." 

On  the  26th  one  of  the  plaintiffs  wrote  from  Liverpool  : 
"  Your  letter  has  followed  me  here.  The  pig-iron  trade  is  at 
present  very  excited,  and  it  is  difficult  to  decide  whether  prices 
will  be  maintained  or  fall  as  suddenly  as  they  have  advanced. 
Sales  are  being  made  freely  for  forward  delivery  chiefly,  but 
not  in  warrants.  It  may,  however,  be  found  advisable  to  sell 
the  warrants  as  maker's  iron.  I  would  recommend  you  to  fix 
your  price,  and  if  you  will  write  me  your  limit  to  Middlesbor- 
ough,  I  shall  probably  be  able  to  wire  you  something  definite 
on  Monday."  This  letter  was  crossed  by  a  letter  written  on  the 
same  day  by  the  clerk  of  one  Fossick,  the  defendant's  broker  in 
London,  and  which  was  in  these  terms  : 

"  Referring  to  R.  A.  McLean's  letter  to  you  re  warrants, 
I  have  seen  him  again  to-day,  and  he  considers  39^.  too  low  for 
same.  At  40.5-.  he  says  he  would  consider  an  offer.  However, 
I  shall  be  obliged  by  your  kindly  wiring  me,  if  possible,  your 
best  offer  for  all  or  part  of  the  warrants  he  has  to  dispose  of." 

On  the  27th  (Saturday)  the  plaintiffs  sent  to  Fossick  the  fol- 
lowing telegram  : 

"  Cannot  make  an  offer  today  ;  warrants  rather  easier.  Sev- 
eral sellers  think  might  get  39.?.  6d.  if  you  could  wire  firm  offer 
subject  reply  Tuesday  noon." 

In  answer  to  this  Fossick  wrote  on  the  same  day  :  "  Your 
telegram  duly  to  hand  re  warrants.  I  have  seen  Mr.  McLean, 
but  he  is  not  inclined  to  make  a  firm  offer.  I  do  not  think  he 
is  likely  to  sell  at  39^-.  6d.,  but  will  probably  prefer  to  wait. 
Please  let  me  know  immediately  you  get  any  likely  offer." 

On  the  same  day  the  defendant,  who  had  then  received  the 
Liverpool  letter  of  the  26th,  wrote  himself  to  the  plaintiffs  as 
follows  : 

"  Mr.  Fossick's  clerk  showed  me  a  telegram  from  him  yester- 
day mentioning  39.^.  for  No.  3  as  present  price,  40s.  for  forward 
delivery.  I  instructed  the  clerk  to  wire  you  that  I  would  now 
sell  for  4o.f.,  net  cash,  open  till  Monday."  No  such  telegram 
was  sent  by  Fossick's  clerk. 

The  plaintiffs  were  thus  on  the  28th  (Sunday)  in  possession 
of  both  letters,  the  one  from  Fossick  stating  that  the  defendant 


I 
290  STEVENSON,   JAQUES   &   CO.   V.    McLEAN.        [cHAP.  I. 

was  not  inclined  to  make  a  firm  offer  ;  and  the  other  from  the 
defendant  himself,  to  the  effect  that  he  would  sell  for  40^.,  net 
cash,  and  would  hold  it  open  all  Monday.  This  it  was  admitted 
must  have  been  the  meaning  of  "  open  till  Monday." 

On  the  Monday  morning,  at  9.42,  the  plaintiffs  telegraphed 
to  the  defendant  :  "  Please  wire  whether  you  would  accept  forty 
for  delivery  over  two  months,  or  if  not,  longest  limit  you  would 
give." 

This  telegram  was  received  at  the  office  at  Moorgate  at 
10. 1  A.M.,  and  was  delivered  at  the  defendant's  office  in  the  Old 
Jewry  shortly  afterward. 

No  answer  to  this  telegram  was  sent  by  the  defendant,  but 
after  its  receipt  he  sold  the  warrants,  through  Fossick,  for  40i-., 
net  cash,  and  at  1.25  sent  off  a  telegram  to  the  plaintiffs  : 
"  Have  sold  all  my  warrants  here  for  forty  net  to-day."  This 
telegram  reached  Middlesborough  at  1.46,  and  was  delivered  in 
due  course. 

Before  its  arrival  at  Middlesborough,  however,  and  at  1.34, 
the  plaintiffs  telegraphed  to  defendant  :  "  Have  secured  your 
price  for  payment  next  Monday — write  you  fully  by  post." 

By  the  usage  of  the  iron  market  at  Middlesborough,  contracts 
made  on  a  Monday  for  cash  are  payable  on  the  following 
Monday. 

At  2.6  on  the  same  day,  after  receipt  of  the  defendant's  tele- 
gram announcing  the  sale  through  Fossick,  the  plaintiffs  tele- 
graphed :  "  Have  your  telegram  following  our  advice  to  you  of 
sale,  per  your  instructions,  which  we  cannot  revoke,  but  rely 
upon  your  carrying  out." 

The  defendant  replied  :  "  Your  two  telegrams  received,  but 
your  sale  was  too  late  ;  your  sale  was  not  per  my  instructions." 
And  to  this  the  plaintiffs  rejoined  :  "  Have  sold  your  warrants 
on  terms  stated  in  your  letter  of  27th." 

The  iron  was  sold  by  plaintiffs  to  one  Walker  at  41^-.  6d.,  and 
the  contract  note  was  signed  before  i  o'clock  on  Monday.  The 
price  of  iron  rapidly  rose,  and  the  plaintiffs  had  to  buy  in  ful- 
filment of  their  contract  at  a  considerable  advance  on  40^. 

The  only  question  of  fact  raised  at  the  trial  was,  whether  the 
relation  between  the  parties  was  that  of  principal  and  agent,  or 
that  of  buyer  and  seller.  The  jury  found  it  was  that  of  buyer 
and  seller,  and  no  objection  has  been  taken  to  this  finding. 

Two  objections  were  relied  on  by  the  defendant  :  First,  it  was 
contended  that  the  telegram  sent  by  the  plaintiffs  on  the  Monday 
morning  was  a  rejection  of  the  defendant's  offer  and  a  new  pro- 
posal on  the  plaintiffs'  part,  and  that  the  defendant  had  therefore 
L  right  to  regard  it  as  putting  an  end  to  the  original  negotiation 


SEC.  II.]  STEVENSON,   JAQUES   &   CO.   ■:'.    McLEAN.  29I 

Looking  at  the  form  of  the  telegram,  tlie  time  when  it  was 
sent,  and  the  state  of  the  iron  market,  I  cannot  think  this  is  its 
fair  meaning.  The  plaintiff  Stevenson  said  he  meant  it  only  as 
an  inquiry,  expecting  an  answer  for  his  guidance,  and  this, 
I  think,  is  the  sense  in  which  the  defendant  ought  to  have 
regarded  it. 

It  is  apparent  throughout  the  correspondence,  that  the  plain- 
tiffs did  not  contemplate  buying  the  iron  on  speculation,  but 
that  their  acceptance  of  the  defendant's  offer  depended  on  their 
finding  some  one  to  take  the  warrants  o^f  their  hands.  All  par- 
ties knew  that  the  market  was  in  an  unsettled  state,  and  that 
no  one  could  predict  at  the  early  hour  when  the  telegram  was 
sent  how  the  prices  would  range  during  the  day.  It  was  reason- 
able that,  under  these  circumstances,  they  should  desire  to  know 
before  business  began  whether  they  were  to  be  at  liberty  in  case 
of  need  to  make  any  and  what  concession  as  to  the  time  or  times 
of  delivery,  which  would  be  the  time  or  times  of  payment,  or 
whether  the  defendant  was  determined  to  adhere  to  the  terms 
of  his  letter  ;  and  it  was  highly  unreasonable  that  the  plaintiffs 
should  have  intended  to  close  the  negotiation  while  it  was  un- 
certain whether  they  could  find  a  buyer  or  not,  having  the 
whole  of  the  business  hours  of  the  day  to  look  for  one.  Then, 
again,  the  form  of  the  telegram  is  one  of  inquiry.  It  is  not  "  I 
offer  forty  for  delivery  over  two  months,"  which  would  have 
likened  the  case  to  Hyde  v.  Wrench,'  where  one  party  offered 
his  estate  for  ^,^1000,  and  the  other  answered  by  offering  ^^950. 
Lord  Langdale,  in  that  case,  held  that  after  the  ^950  had  been 
refused,  the  party  offering  it  could  not,  by  then  agreeing  to  the 
original  proposal,  claim  the  estate,  for  the  negotiation  was  at 
an  end  by  the  refusal  of  his  counter  proposal.  Here  there  is  no 
counter  proposal.  The  words  are,  "  Please  wire  whether  you 
would  accept  forty  for  delivery  over  two  months,  or,  if  not,  the 
longest  limit  you  would  give."  There  is  nothing  specific  by 
way  of  offer  or  rejection,  but  a  mere  inquiry,  which  should  have 
been  answered  and  not  treated  as  a  rejection  of  the  offer.  This 
ground  of  objection  therefore  fails. 

The  remaining  objection  was  one  founded  on  a  well-known 
passage  in  Pothier,  which  has  been  supposed  to  have  been  sanc- 
tioned by  the  Court  of  Queen's  Bench  in  Cooke  v.  Oxley,*  that 
in  order  to  constitute  a  contract  there  must  be  the  assent  or 
concurrence  of  the  two  minds  at  the  moment  when  the  offer  is 
accepted  ;  and  that  if,  when  an  offer  is  made,  and  time  is  given 
to  the  other  party  to  determine  whether  he  will  accept  or  reject 
it,  the  proposer  changes  his  mind  before  the  time  arrives. 
'  3  Beav.  334.  2  3  T.  R.  653. 


292  STEVENSON,  JAQUES  &  CO.   V.   McLEAN.        [chap.  i. 

although  no  notice  of  the  withdrawal  has  been  given  to  the 
other  party,  the  option  of  accepting  it  is  gone.  The  case  of 
Cooke  V.  Oxley'  does  not  appear  to  me  to  warrant  the  inference 
which  has  been  drawn  from  it,  or  the  supposition  that  the  judges 
ever  intended  to  lay  down  such  a  doctrine.  The  declaration 
stated  a  proposal  by  the  defendant  to  sell  to  the  plaintiff  266 
hogsheads  of  sugar  at  a  specific  price,  that  the  plaintiff  desired 
time  to  agree  to,  or  dissent  from,  the  proposal  till  four  in  the 
afternoon,  and  that  defendant  agreed  to  give  the  time,  and 
promised  to  sell  and  deliver  if  the  plaintiff  would  agree  to  pur- 
chase and  give  notice  thereof  before  4  o'clock.  The  Court 
arrested  the  judgment  on  the  ground  that  there  was  no  consid- 
eration for  the  defendant's  agreement  to  wait  till  4  o'clock,  and 
that  the  alleged  promise  to  wait  was  nudum  pactum. 

All  that  the  judgment  affirms  is,  that  a  party  who  gives  time 
to  another  to  accept  or  reject  a  proposal  is  not  bound  to  wait 
till  the  time  expires.  And  this  is  perfectly  consistent  with  legal 
principles  and  with  subsequent  authorities,  which  have  been 
supposed  to  conflict  with  Cooke  v.  Oxley. °  It  is  clear  that  a 
unilateral  promise  is  not  binding,  and  that  if  the  person  who 
makes  an  offer  revokes  it  before  it  has  been  accepted,  which  he 
is  at  liberty  to  do,  the  negotiation  is  at  an  end.  See  Rout- 
ledge  V.  Grant.'  But  in  the  absence  of  an  intermediate  revoca- 
tion, a  party  who  makes  a  proposal  by  letter  to  another  is  con- 
sidered as  repeating  the  offer  every  instant  of  time  till  the  letter 
has  reached  its  destination  and  the  correspondent  has  had  a 
reasonable  time  to  answer  it.  Adams  v.  Lindsell.'*  "  Common 
sense  tells  us,"  said  Lord  Cottenham,  in  Dunlop  v.  Higgins,* 
"  that  transactions  cannot  go  on  without  such  a  rule."  It  can- 
not make  any  difference  whether  the  negotiation  is  carried  on 
by  post,  or  by  telegraph,  or  by  oral  message.  If  the  offer  is  not 
retracted,  it  is  in  force  as  a  continuing  offer  till  the  time  for 
accepting  or  rejecting  it  has  arrived.  But  if  it  is  retracted, 
there  is  an  end  of  the  proposal.  Cooke  v.  Oxley,'  if  decided 
the  other  way,  would  have  negatived  the  right  of  the  proposing 
party  to  revoke  his  offer. 

Taking  this  to  be  the  effect  of  the  decision  in  Cooke  v.  Oxley,^ 
the  doctrine  of  Pothier  before  adverted  to,  which  is  undoubtedly 
contrary  to  the  spirit  of  English  law,  has  never  been  affirmed 
in  our  Courts.  Singularly  enough,  the  very  reasonable  propo- 
sition that  a  revocation  is  nothing  till  it  has  been  communicated 
to  the  other  party,  has  not,  until  recently,  been  laid  down,  no 
case  having  apparently  arisen  to  call  for  a  decision  upon  the 

'  3  T.  R.  653.        » 4  Bing.  653.  5  I  H.  L.  C.  381.  '  Ibid. 

'  Ibtd.  *  I  B.  &  A.  681.        «  3  T.  R.  653. 


SEC.  I/.]       M.  &  ST.  L.  RY.  V.  COLUMBUS  ROLLING  MILL.  293 

point.  In  America  it  was  decided  some  years  ago  that  "  an 
offer  cannot  be  withdrawn  unless  the  withdrawal  reaches  the 
party  to  whom  it  is  addressed  before  his  letter  of  reply  announc- 
ing the  acceptance  has  been  transmitted."  Tayloe  v.  Mer- 
chants' Fire  Insurance  Co.;'  and  in  Bj'rne  &  Co.  v.  Leon  Van 
Tienhoven  &  Co.*  my  Brother  Lindley,  in  an  elaborate  judg- 
ment, adopted  this  view,  and  held  that  an  uncommunicated 
revocation  is,  for  all  practical  purposes  and  in  point  of  law,  no 
revocation  at  all. 

It  follows,  that  as  no  notice  of  withdrawal  of  his  offer  to  sell 
at  40i'.,  net  cash,  was  given  by  the  defendant  before  the  plain- 
tiffs  sold  to  Walker,  the}^  had  a  right  to  regard  it  as  a  continu- 
ing offer,  and  their  acceptance  of  it  made  the  contract,  which 
was  initiated  by  the  proposal,  complete  and  binding  on  both 
parties. 

My  judgment  must,  therefore,  be  for  the  plaintiffs  for  ^1900, 
but  this  amount  is  liable  to  be  reduced  by  an  arbitrator  to  be 
agreed  on  by  the  parties,  or,  if  they  cannot  agree  within  a  week, 
to  be  nominated  by  me.  If  no  arbitrator  is  appointed,  or  if  the 
amount  be  not  reduced,  the  judgment  will  stand  for  ^1900. 
The  costs  of  the  arbitration  to  be  in  the  arbitrator's  discretion. 

Judgment  for  the  plaintiffs. 


MINNEAPOLIS  &  ST.  LOUIS   RAILWAY  v.  COLUMBUS 
ROLLING   MILL. 

In  the  Supreme  Court  of  the  United  States,  November  29, 

1886. 

\^Reported  m  119  United  States  149.] 

This  was  an  action  by  a  railroad  corporation  established  at 
Minneapolis  in  the  State  of  Minnesota  against  a  manufacturing 
corporation  established  at  Columbus  in  the  State  of  Ohio.  The 
petition  alleged  that  on  December  19th,  1879,  the  parties  made 
a  contract  by  which  the  plaintiff  agreed  to  buy  of  the  defendant, 
and  the  defendant  sold  to  the  plaintiff  2000  tons  of  iron  rails 
of  the  weight  of  50  pounds  per  yard,  at  the  price  of  $54 
per  ton  gross,  to  be  delivered  free  on  board  cars  at  the  defend- 
ant's rolling  mill  in  the  month  of  March,  1880,  and  to  be  paid 
for  by  the  plaintiff  in  cash  when  so  delivered.  The  answer 
denied  the  making  of  the  contract.  It  was  admitted  at  the  trial 
that  the  following  letters  and  telegrams  were  sent  at  their  dates. 

'  9  How.  Sup.  Court  Rep.  390.  '  49  L.  J.  (C.  P.)  316. 


294  M-  &  ST.  L.  RY.  V.  COLUMBUS  ROLLING  MILL.     [chap.  I. 

and  were  received  in  due  course,  by  the  parties,  through  their 
agents  : 

December- 5th,  1879.     Letter  from  plaintiff  to  defendant  : 

"  Please  quote  me  prices  for  500  to  3000  tons  50  lb.  steel  rails, 
and  for  2000  to  5000  tons  50  lb.  iron  rails,  March,  1880,  delivery." 

December  8th,  1879.     Letter  from  defendant  to  plaintiff  : 

"  Your  favor  of  the  5th  inst.  at  hand.  We  do  not  make  steel 
rails.  For  iron  rails,  we  will  sell  2000  to  5000  tons  of  50  lb. 
rails  for  fifty-four  ($54)  dollars  per  gross  ton  for  spot  cash, 
F.  O.  B.  cars  at  our  mill,  March  delivery,  subject  as  follows  : 
In  case  of  strike  among  our  workmen,  destruction  of  or  serious 
damage  to  our  works  by  fire  or  the  elements,  or  any  causes  of 
delay  beyond  our  control,  we  shall  not  be  held  accountable  in 
damages.  If  our  offer  is  accepted,  shall  expect  to  be  notified 
of  same  prior  to  December  20th,  1879." 

December  i6th,  1879.     Telegram  from  plaintiff  to  defendant  : 

*'  Please  enter  our  order  for  1200  tons  rails,  March  delivery, 
as  per  your  favor  of  the  8th.     Please  reply." 

December  i6th,  1879.     Letter  from  plaintiff  to  defendant  : 

"  Yours  of  the  8th  came  duly  to  hand.  I  telegraphed  you 
to-day  to  enter  our  order  for  twelve  hundred  (1200)  tons  50  lb. 
iron  rails  for  next  March  delivery,  at  fifty-four  ($54)  dollars 
F.  O.  B.  cars  at  your  mill.  Please  send  contract.  Also  please 
send  me  templet  of  your  50  lb.  rail.  Do  you  make  splices  ?  If 
so,  give  me  prices  for  splices  for  this  lot  of  iron." 

December  i8th,  1879.  Telegram  from  defendant  to  plaintiff, 
received  same  day  : 

"  We  cannot  book  your  order  at  present  at  that  price." 

December  19th,  1879.     Telegram  from  plaintiff  to  defendant : 

"  Please  enter  an  order  for  2000  tons  rails,  as  per  your  letter 
of  the  6th.     Please  forward  written  contract.     Reply." 

[The  word  "  sixth"  was  admitted  to  be  a  mistake  for 
"eighth."] 

December  2 2d,  1879.     Telegram  from  plaintiff  to  defendant  : 

"  Did  you  enter  my  order  for  2000  tons  rails,  as  per  my  tele- 
gram of  December  19th  ?     Answer." 

After  repeated  similar  inquiries  by  the  plaintiff,  the  defendant, 
on  January  19th,  1880,  denied  the  existence  of  any  contract 
between  the  parties. 


SEC.  I/'.]       M.  &  ST.  L.  RY.  V.  COLUMBUS  ROLLING  MILL.  295 

The  jury  returned  a  verdict  for  the  defendant,  under  instruc- 
tions which  need  not  be  particularly  stated  ;  and  the  plaintiff 
alleged  exceptions,  and  sued  out  this  writ  of  error. 

Eppa  Hunton  for  plaintiff  in  error.  C.  N.  Olds  and  Z.  J. 
■  Critchfield  filed  a  brief  for  same. 

Richard  A.  Harrison  for  defendant  in  error,  submitted  on  his 
brief. 

Gray,  J.,  after  making  the  foregoing  statement  of  the  case, 
delivered  the  opinion  of  the  Court. 

The  rules  of  law  which  govern  this  case  are  well  settled.  As 
no  contract  is  complete  without  the  mutual  assent  of  the  parties, 
an  offer  to  sell  imposes  no  obligation  until  it  is  accepted  accord- 
ing to  its  terms.  So  long  as  the  offer  has  been  neither  accepted 
nor  rejected,  the  negotiation  remains  open,  and  imposes  no 
obligation  upon  either  party  ;  the  one  may  decline  to  accept,  or 
the  other  may  withdraw  his  offer  ;  and  either  rejection  or  with- 
drawal leaves  the  matter  as  if  no  offer  had  ever  been  made.  A 
proposal  to  accept,  or  an  acceptance,  upon  terms  varying  from 
those  offered,  is  a  rejection  of  the  offer,  and  puts  an  end  to  the 
negotiation,  unless  the  party  who  made  the  original  offer  renews 
it,  or  assents  to  the  modification  suggested.  The  other  party, 
having  once  rejected  the  offer,  cannot  afterward  revive  it  by 
tendering  an  acceptance  of  it.  Eliason  v.  Henshaw,  4  Wheat. 
225  ;  Carre/.  Duval,  14  Pet.  77  ;  National  Bankt/.  Hall,  loi  U.  S. 
43,  50  ;  Hyde  v.  Wrench,  3  Beavan,  334  ;  Fox  v.  Turner,  i  Brad- 
well,  153.  If  the  offer  does  not  limit  the  time  for  its  acceptance, 
it  must  be  accepted  within  a  reasonable  time.  If  it  does,  it 
may,  at  any  time  within  the  limit  and  so  long  as  it  remains 
open,  be  accepted  or  rejected  by  the  party  to  whom,  or  be  with- 
drawn by  the  party  by  whom,  it  was  made.  Boston  &  Maine 
Railroad  v.  Bartlett,  3  Cush.  224  ;  Dickinson  v.  Dodds,  2  Ch.  D. 

463- 

The  defendant,  by  the  letter  of  December  8th,  offered  to  sell 
to  the  plaintiff  2000  to  5000  tons  of  iron  rails  on  certain  terms 
specified,  and  added  that  if  the  offer  was  accepted  the  defendant 
would  expect  to  be  notified  prior  to  December  20th.  This  offer, 
while  it  remained  open,  without  having  been  rejected  by  the 
plaintiff  or  revoked  by  the  defendant,  would  authorize  the  plain- 
tiff to  take  at  his  election  any  number  of  tons  not  less  than  2000 
nor  more  than  5000,  on  the  terms  specified.  The  offer,  while 
unrevoked,  might  be  accepted  or  rejected  by  the  plaintiff  at  any 
time  before  December  20th.  Instead  of  accepting  the  offer 
made,  the  plaintiff,  on  December  i6th,  by  telegram  and  letter, 
referring  to  the  defendant's  letter  of  December  8th,  directed  the 
defendant  to  enter  an  order  for   1200  tons  on  the  same  terms. 


296  WERNER  V.    HUMPHREYS.  [CHAP,  I. 

The  mention,  in  both  telegram  and  letter,  of  the  date  and  the 
terms  of  the  defendant's  original  offer,  shows  that  the  plaintiff's 
order  was  not  an  independent  proposal,  but  an  answer  to  the 
defendant's  offer,  a  qualified  acceptance  of  that  offer,  varying 
the  number  of  tons,  and  therefore  in  law  a  rejection  of  the  offer. 
On  December  i8th  the  defendant  by  telegram  declined  to  fulfil 
the  plaintiff's  order.  The  negotiation  between  the  parties  was 
thus  closed,  and  the  plaintiff  could  not  afterward  fall  back  on 
the  defendant's  original  offer.  The  plaintiff's  attempt  to  do  so, 
by  the  telegram  of  December  19th,  was  therefore  ineffectual  and 
created  no  rights  against  the  defendant. 

Such  being  the  legal  effect  of  what  passed  in  writing  between 
the  parties,  it  is  unnecessary  to  consider  whether,  upon  a  fair 
interpretation  of  the  instructions  of  the  Court,  the  question 
whether  the  plaintiff's  telegram  and  letter  of  December  i6th 
constituted  a  rejection  of  the  defendant's  offer  of  December  8th 
was  ruled  in  favor  of  the  defendant  as  matter  of  law,  or  was 
submitted  to  the  jury  as  a  question  of  fact.  The  submission  of 
a  question  of  law  to  the  jury  is  no  ground  of  except ion_i£_they 
decide  it  aright.     Pence  v.  Langdon,  99  U.  S.  578. 

Judgment  affirmed. 


(y)   Terminatiofi  of  offer  by  death  or  insanity. 
-    WERNER,  Administrator,   etc.,  v.   HUMPHREYS. 
In  the  Common  Pleas,  Easter  Term,  1841. 
\Reported  in  2  Manning  (5-=  Granger  853.] 

Debt  for  goods  sold  and  delivered  by  the  intestate,  and  on 
an  account  stated  with  the  intestate  ;  and  for  goods  sold  and 
delivered  by,  and  upon  an  account  stated  with  M.  Triquet, 
deceased,  as  administratrix. 

The  defendant  pleaded,  first,  to  the  whole  declaration  nun- 
quani  indebitatus;  secondly,  to  the  first  two  counts  payment; 
and  thirdly,  to  the  same  counts  a  set-off  ;  on  which  pleas  issue 
was  taken  and  joined. 

At  the  trial  before  the  under-sheriff  of  Middlesex,  in  January 
last,  it  appeared  that  the  action  was  brought  to  recover  the  sum 
of  ^4  i6j.,  the  price  of  a  coat,  which  the  intestate  had  been  em- 
ployed to  make  for  the  defendant.  The  coat,  which  was  made 
out  of  Triquet's  own  materials,  had  been  tacked  together,  and 
tried  on  by  the  defendant,  previously  to  Triquet's  death,  but 
was   not  completed   and   delivered   until   four  days  afterward. 


SEC.  l/]  WERNER   V.    HUMPHREYS.  297 

Triquet  having  died  intestate,  his  widow  too  obtained  letters  of 
administration  ;  and  on  her  deatii  the  plaintiff,  who  was  her 
father,  took  out  administration  de  bonis  tion. 

It  being  admitted  that  the  set-off  was  an  answer  to  the  first 
two  counts,  the  question  was,  whether  the  plaintiff  could  recover 
on  the  third.  The  under-sheriff  told  the  jury  that  if  they  were 
of  opinion  that  the  coat  was  so  nearly  finished  in  the  intestate's 
lifetime  as  only  to  require  some  trifling  work  to  be  done  to  it 
afterward,  they  ought  to  find  for  the  defendant  ;  and  he  left  it 
to  them  to  say  whether  the  coat  was  not  made  and  completed 
"or  so  nearly  so"  in  the  lifetime  of  the  intestate,  as  to  be  a 
coat  sold  and  delivered  by  him.  The  jury  having  found  a  ver- 
dict for  the  defendant, 

C/ianneH,  in  Hilary  Term  last,  obtained  a  rule  nisi  for  a  new 
trial,  on  the  ground  of  misdirection. 

Bompas  now  showed  cause.  The  result  of  the  evidence  was 
that  the  coat  was  substantially  finished  and  delivered  in  the 
intestate's  lifetime.  There  was  no  contract  with  the  adminis- 
tratrix, so  as  to  enable  the  plaintiff  to  recover  on  the  third  count. 
If  the  coat  was  sold  by  the  intestate  and  delivered  after  his 
death,  that  ought  to  have  been  alleged  in  the  declaration,  and 
the  defendant  is  consequently  entitled  to  a  verdict  on  the  plea 
of  nunquam  indebitatus. 

Channell  in  support  of  the  rule.  There  was  no  sale  of  the  coat 
in  the  lifetime  of  the  intestate.  There  was  a  delivery  and  an 
acceptance  of  it  four  days  after  his  death.  The  coat  not  being 
finished  in  the  intestate's  lifetime,  clearly  passed  to  his  admin- 
istratrix as  part  of  his  assets.  The  defendant  could  not  have 
maintained  trover  against  her  for  the  coat,  even  if  he  had  ten- 
dered the  price  ;  and  in  case  it  had  been  accidentally  destroyed, 
the  administratrix  must  have  borne  the  loss.  It  is  clear  that 
the  coat  was  completed  by  her  ;  and,  therefore,  the  defendant 
entered  into  a  new  contract  with  her.  In  Marshall  v.  Broad- 
hurst,  I  Tyrwh.  348,  i  C.  &  J.  403,  a  testator,  having  contracted 
to  build  a  wooden  gallery,  died  before  it  was  begun,  and  it  was 
erected  by  his  executors  after  his  death.  It  was  held  that  they 
were  entitled  to  sue  for  work  and  labor  done,  and  materials 
found  by  them,  as  executors  ;  for  the  sum  recovered  would  be 
assets. 

TiNDAL,  C.J.  It  appears  to  me  upon  the  evidence  that  the 
coat  was  in  an  unfinished  state  at  the  death  of  the  intestate  ; 
and  if  so,  no  property  in  it  had  passed  to  the  defendant,  but  it 
vested  in  the  administratrix,  and  it  was  in  her  option  whether 
to  complete  it  or  not.  And  if  the  coat  had  been  accidentally 
destroyed  by  fire,  the  loss  would  not  have  fallen  upon  the  de- 


298  WERNER   V.    HUMPHREYS.  [CHAP.  1. 

fendant,  but  upon  the  administratrix  ;  which  is  one  of  the  tests 
to  show  that  no  property  in  it  had  vested  in  the  former.  Then 
if  the  property  in  the  coat  vested  in  the  administratrix  on  the 
intestate's  decease,  and  she  finished  and  delivered  it  afterward, 
it  seems  to  me  that  such  coat  was  delivered  under  a  new  con- 
tract made  by  her  with  the  defendant.  I  think  the  third  count 
in  the  declaration,  which  alleges  a  sale  and  delivery  by  the 
administratrix,  exactly  meets  the  case.  The  summing  up  of 
the  under-sheriff  was  clearly  incorrect  ;  for  he  withdrew  the 
attention  of  the  jury  from  that  count  ;  and,  consequently,  there 
must  be  a  new  trial. 

BosANQUET,  J.  The  question  is,  whether  there  was  not  a  sale 
and  delivery  of  the  coat  by  the  administratrix,  so  as  to  entitle 
the  plaintiff  to  recover  upon  the  third  count.  It  appeared  to 
be  clear  upon  the  evidence  that  the  coat  was  not  completed  in 
the  intestate's  lifetime,  and  that  it  was  not  delivered  until  some 
days  after.  The  under-sheriff  was  undoubtedly  wrong  in  his 
direction  to  the  jury. 

CoLTMAN,  J.  The  question  is  whether  the  plaintiff  was  not 
entitled  to  recover  upon  the  third  count ;  and  that  depends  upon 
whether  there  was  any  transfer  of  the  property  in  the  coat  in 
the  intestate's  lifetime.  It  seems  to  me  that  there  was  not. 
The  coat  was  made  of  the  intestate's  own  materials,  and  the 
trying  of  it  on  effected  no  transfer  of  the  property,  which  re- 
mained in  the  intestate  until  his  death.  When  the  coat  was 
afterward  delivered  to  the  defendant  by  the  administratrix  in  a 
finished  state,  it  was  a  delivery  by  her,  and  formed  a  good 
foundation  for  an  action  for  goods  sold  and  delivered  by  her, 
in  her  representative  character.  It  is  clear  that  the  defendant 
could  not  have  maintained  trover  for  the  coat  at  the  death  of 
the  intestate. 

Erskine,  J.  There  was  no  evidence  of  a  sale  of  the  coat  by 
the  intestate  in  his  lifetime.  It  appeared  that  the  coat  was 
made  out  of  the  intestate's  own  materials,  and  that  after  it  was 
tacked  together,  it  was  tried  on  by  the  defendant.  Although 
that  showed  an  inte?ition  on  the  part  of  the  intestate  to  appro- 
priate that  identical  coat  to  the  defendant,  it  is  clear  that  no 
property  in  it  passed  to  the  latter  in  the  lifetime  of  the  former, 
but  that  it  vested  in  the  administratrix,  and  that  the  subsequent 
delivery  was  a  sale  and  delivery  by  her  in  that  character. 

Rule  absolute. 


SEC.  l/]  JORDAN    AND    OTHERS    V.    DOBBINS.  299 


EBEN  D.   JORDAN  and  Others  v.   ELIZABETH 
DOBBINS,   Administratrix. 

■    In  the  Supreme  Judicial  Court  of  Massachusetts, 
March   i,  1877. 

[Reported  in  122  Massachusetts  Reports  168.] 

Contract  upon  the  following  guaranty  :  "  For  value  re- 
ceived, the  receipt  whereof  is  hereb}''  acknowledged,  the  under- 
signed does  hereby  guaranty  to  Jordan,  Marsh  &  Co.  the  prompt 
payment  by  George  E.  Moore  to  Jordan,  Marsh  &  Co.,  at  matu- 
rity, of  all  sums  of  money  and  debts  which  he  may  hereafter  owe 
Jordan,  Marsh  &  Co.  for  merchandise,  which  they  may  from 
time  to  time  sell  to  him,  whether  such  debts  be  on  book  account, 
by  note,  draft  or  otherwise,  and  also  any  and  all  renewals  of 
any  such  debt.  The  undersigned  shall  not  be  compelled  to  pay 
on  this  guaranty  a  sum  exceeding  $1000,  but  this  guaranty  shall 
be  a  continuing  guaranty,  and  apply  to  and  be  available  to  said 
Jordan,  Marsh  &.Co.,  for  all  sales  of  merchandise  they  may 
make  to  said  George  E.  Moore  until  written  notice  shall  have 
been  given  by  the  undersigned  to  said  Jordan,  Marsh  &  Co.  and 
received  by  them,  that  it  shall  not  apply  to  future  purchases. 
Notice  of  the  acceptance  of  this  guaranty  and  of  sales  under  the 
same,  and  demand  upon  said  George  E.  Moore  for  payment, 
and  notice  to  me  of  non-payment,  is  hereby  waived.  In  witness 
whereof  I,  the  undersigned,  have  hereunto  set  my  hand  and  seal 
this  twenty-eighth  day  of  February,  a.d.  1873.  William  Dob- 
bins. (Seal.)"  Annexed  to  the  declaration  was  an  account  of 
goods  sold  to  Moore. 

The  case  was  submitted  to  the  Superior  Court,  and,  after 
judgment  for  the  plaintiffs,  to  this  Court,  on  appeal,  on  an 
agreed  statement  of  facts  in  substance  as  follows  : 

The  plaintiffs  are  partners  under  the  firm  name  of  Jordan, 
Marsh  &  Co.,  and  the  defendant  is  the  duly  appointed  adminis- 
tratrix of  the  estate  of  William  Dobbins. 

William  Dobbins,  on  February  28th,  1873,  executed  and  de- 
livered to  the  plaintiffs  the  above  written  contract  of  guaranty. 
The  plaintiffs  thereafter,  relying  on  this  contract,  sold  to  said 
Moore  the  goods  mentioned  in  the  account  annexed  to  the  dec- 
laration, at  the  times  and  for  the  prices  given  in  said  account, 
all  of  the  goods  having  been  sold  and  delivered  to  Moore  be- 
tween January  i6th.  and  May  28th,  1874.  All  the  amounts 
claimed  were  due  from  Moore,  and  payment  was  duly  demanded 
of  him  and  of  the  defendant  before  the  date  of  the  writ.     Other 


30O  JORDAN   AND   OTHERS   V.    DOBBINS.  [CHAP.  I. 

goods  had  been  sold  by  the  plaintiffs  to  Moore  between  the  date 
of  the  guaranty  and  the  first  date  mentioned  in  the  account,  but 
these  had  been  paid  for. 

William  Dobbins  died  on  August  6th,  1873,  and  the  defendant 
was  appointed  administratrix  of  his  estate  on  September  2d, 
1873.  The  plaintiffs  had  no  notice  of  his  death  until  after  the 
last  of  the  goods  mentioned  in  the  account  had  been  sold  to 
Moore. 

If  upon  these  facts  the  defendant  was  liable,  judgment  was  to 
be  entered  for  the  plaintiffs  for  the  amount  claimed  ;  otherwise 
judgment  for  the  defendant. 

M.  Storey  for  the  plaintiffs. 

D.  S.  Richardson  &'  G.  F.  Richardson  for  the  defendant. 

Morton,  J.  An  agreement  to  guarantee  the  payment  by 
another  of  goods  to  be  sold  in  the  future,  not  founded  upon 
any  present  consideration  passing  to  the  guarantor,  is  a  con- 
tract of  a  peculiar  character.  Until  it  is  acted  upon,  it  imposes 
no  obligation  and  creates  no  liability  of  the  guarantor.  After 
it  is  acted  upon,  the  sale  of  the  goods  upon  the  credit  of  the 
guaranty  is  the  only  consideration  for  the  conditional  promise 
of  the  guarantor  to  pay  for  them. 

The  agreement  which  the  guarantor  makes  with  the  person 
receiving  the  guaranty  is  not  that  I  now  become  liable  to  you 
for  anything,  but  that  if  you  sell  goods  to  a  third  person,  I  will 
then  become  liable  to  pay  for  them  if  such  third  person  does 
not.  It  is  of  the  nature  of  an  authority  to  sell  goods  upon  the 
credit  of  the  guarantor,  rather  than  of  a  contract  which  cannot 
be  rescinded  except  by  mutual  consent.  Thus  such  a  guaranty 
is  revocable  by  the  guarantor  at  any  time  before  it  is  acted  upon. 

In  Offord  v.  Davies,  12  C.  B,  (N.  S.)  748,  the  guaranty  was  of 
the  due  payment  for  the  space  of  twelve  months  of  bills  to  be 
discounted,  and  the  Court  held  that  the  guarantor  might  revoke 
it  at  any  time  within  the  twelve  months,  and  that  the  plaintiff 
could  not  recover  for  bills  discounted  after  such  revocation. 
The  ground  of  the  decision  was  that  the  defendant's  promise 
by  itself  created  no  obligation,  but  was  in  the  nature  of  a  pro- 
posal which  might  be  revoked  at  any  time  before  it  V\^as  acted  on. 

Such  being  the  nature  of  a  guaranty,  we  are  of  opinion  that 
the  death  of  the  guarantor  operates  as  a  revocation  of  it,  and 
that  the  person  holding  it  cannot  recover  against  his  executor 
or  administrator  for  goods  sold  after  the  death.  Death  termi- 
nates the  power  of  the  deceased  to  act,  and  revokes  any  author- 
ity or  license  he  may  have  given,  if  it  has  not  been  executed  or 
acted  upon.  His  estate  is  held  upon  any  contract  upon  which 
a  liability  exists  at  the  time  of  his  death,  although  it  may  de- 


SEC.  l/]  DREW    V.    NUiNN.  3OI 

pend  upon  future  contingencies.  But  it  is  not  held  for  a  liabil- 
ity which  is  created  after  his  death,  by  the  exercise  of  a  power 
or  authority  which  he  might  at  any  time  revoke. 

Applying  these  principles  to  the  case  at  bar,  it  follows  that 
the  defendant  is  entitled  to  judgment.  The  guaranty  is  care- 
fully drawn,  but  it  is  in  its  nature  nothing  more  than  a  simple 
guaranty  for  a  proposed  sale  of  goods.  The  provision,  that  it 
shall  continue  until  written  notice  is  given  by  the  guarantor 
that  it  shall  not  apply  to  future  purchases,  affects  the  mode  in 
which  the  guarantor  might  exercise  his  right  to  revoke  it,  but 
it  cannot  prevent  its  revocation  by  his  death.  The  fact  that  the 
instrument  is  under  seal  cannot  change  its  nature  or  construc- 
tion. No  liability  existed  under  it  against  the  guarantor  at  the 
time  of  his  death,  but  the  goods  for  which  the  plaintiffs  seek  to 
recover  were  all  sold  afterward. 

We  are  not  impressed  by  the  plaintiff's  argument  that  it  is 
inequitable  to  throw  the  loss  upon  them.  It  is  no  hardship  to 
require  traders,  whose  business  it  is  to  deal  in  goods,  to  exer- 
cise diligence  so  far  as  to  ascertain  whether  a  person  upon 
whose  credit  they  are  selling  is  living. 

The  decision  in  Bradbury  v.  Morgan,  i  H.  &  C.  249,  upon 
which  the  plaintiffs  rely,  was  rested  upon  reasoning  which 
appears  to  us  to  be  unsatisfactory  and  inconsistent  with  the 
opinion  of  the  same  Court  a  year  before,  in  Westhead  v.  Sproson, 
6  H.  &  N.  728,  and  with  the  decision  in  Offord  v.  Davies,  ubi 
supra,  at  the  argument  of  which  Bradbury  v.  Morgan  was  cited  ; 
and  it  has  not  since  been  treated  as  settling  the  law  of  England. 
Harriss  f .  Fawcett,  L.  R.  15  Eq.  311,  and  L.  R.  8  Ch.  866.  The 
reasons  of  the  similar  decision  in  Bank  of  South  Carolina  v. 
Knotts,  10  Rich.  543,  are  open  to  the  same  objections. 

Judgment  for  the  defendant. 


DREW  V.   NUNN. 

In  the  Court  of  Appeal,  May  30,  1879. 

[Reported  zn  Law  Reports,  4  Queen's  Bench  Division  661.] 

This  was  an  action  brought  by  a  tradesman  to  recover  the 
price  of  goods  supplied  to  the  defendant's  wife  upon  her  order 
while  the  defendant  was  insane.*  The  following  facts  were 
proved  at  the  trial  before  Mellor,  J. 

'  Although  involving  in  terms  only  the  effect  of  the  insanity  of  a  principal 
upon  the  authority  of  an  agent,  the  case  is  inserted  in  this  section. — Ed. 


302  DREW   V.   NUNN.  [CHAP,  I. 

The  wife  of  the  defendant  began  to  deal  with  the  plaintiff  in 
1872  ;  the  defendant  had  been  present  when  some  of  the  goods 
were  ordered  by  his  wife,  and  also  had  paid  for  some  of  them. 
The  defendant  became  ill  in  1873,  and  in  the  month  of  Novem- 
ber he  instructed  his  agent  to  pay  all  his  income  to  his  wife, 
and  empowered  her  to  draw  checks  upon  his  bankers.  He 
became  insane  in  December,  and  was  confined  in  an  asylum 
until  April,  1877.  While  the  defendant  was  in  the  asylum,  his 
wife  ordered  goods  from  the  plaintiff,  who  supplied  them  to  her 
upon  credit.  The  plaintiff  was  ignorant  that  the  defendant  was 
insane  and  had  been  placed  under  restraint  in  an  asylum,  and 
he  did  not  know  that  the  defendant's  income  was  paid  to  his 
wife.  In  April,  1877,  the  defendant  recovered  the  use  of  his 
reason,  and  in  the  June  following  revoked  any  authority  which 
he  might  have  given  to  his  wife  either  to  act  as  his  agent  or  to 
pledge  his  credit. 

Mellor,  J.,  refused  to  ask  the  jury  whether  the  income  of  the 
defendant's  wife  during  his  confinement  in  the  asylum  was  suffi- 
cient to  maintain  her,  and  directed  the  jury  that  the  plaintiff 
was  entitled  to  recover,  if  what  the  defendant's  wife  did  was 
according  to  the  course  pursued  while  the  defendant  lived  with 
her.     The  jury  found  a  verdict  for  the  plaintiff. 

The  defendant  applied  to  the  Queen's  Bench  Division  for  a 
new  trial  ;  but  the  application  was  refused.  Upon  appeal  to 
this  Court,  an  order  nisi  for  a  new  trial  was  granted  upon  the 
ground  of  misdirection. 

Willis,  Q.C.  {R.  O.  B.  Lane  with  him)  for  the  plaintiff  showed 
cause.  The  direction  of  Mellor,  J.,  was  right.  Insanity  does 
not  revoke  an  authority  to  pledge  the  credit  of  the  person 
becoming  insane,  if  the  person  giving  credit  is  unaware  that  it 
has  supervened.  The  defendant  had  so  conducted  himself  that 
the  plaintiff  was  entitled  to  assume  that  the  defendant's  wife 
was  authorized  to  act  as  his  agent,  and  therefore  Jolly  v.  Rees' 
has  no  application  to  the  present  case,  which  falls  within  the 
principle  to  be  deduced  from  Ryan  v.  Sams.*  A  lunatic  is  liable 
upon  a  reasonable  contract  entered  into  by  him,  if  the  contractee 
did  not  know  that  he  was  insane.  Browne  v.  Joddrell  f  Bax- 
ter V.  Earl  of  Portsmouth  ;■*  Molton  v.  Camroux.^  In  this  case 
the  plaintiff  did  not  know  that  the  defendant  was  insane,  and 
therefore  it  does  not  fall  within  the  principle  acted  upon  by 

1  15  C.  B.  (N,  S.)  628  ;  33  L.  J.  (C.  P.)  177. 

»  12  Q.  B.  460  ;  17  L.  J.  (Q.  B.)  271. 

*  Mood.  &  M.  105. 

■^  5  B.  &  C.  170  ;  sub  no7n.  Bagster  v.  Earl  of  Portsmouth.  7  D,  &  R.  614. 

"2  Ex.  487  ;  18  L.  J.  (Ex.)  68,  in  Ex.  Ch.  4  Ex.  17  ;  18  L.  J.  (Ex.)  356. 


SEC.  I/'.]  DREW    V.    NUNN.  303 

Patteson,  J.,  in  Dane  v.  Viscountess  Kirkwall."  Even  in  equity 
the  contract  of  a  lunatic  could  not  be  set  aside,  if  it  was  fair 
and  had  been  entered  into  without  notice  of  his  malady.  Niell  7k 
Morley."  It  has  been  said  that  a  lunatic  cannot  appoint  an 
agent  ;  but  this  doctrine  must  be  taken  subject  to  some  limita- 
tion. In  Stead  v.  Thornton,'  the  defendant  at  the  time  when  he 
received  the  money  must  have  known  that  his  alleged  principal 
was  insane.  It  was  said  by  Parke,  B  ,  in  Tarbuck  v.  Bispham,* 
that  "  a  lunatic  is  not  competent  to  appoint  an  agent  ;" 
but  this  dictum  was  merely  intended  to  point  out  that,  after 
insanity  has  supervened,  the  person  afiflicted  cannot  appoint  an 
agent.  It  was  decided  in  Read  v.  Legard^  that  a  husband  is 
liable  for  necessaries  supplied  to  his  wife  during  the  period  of 
his  lunacy  ;  but  it  may  be  conceded  for  the  plaintiff,  that  that 
case  is  not  material  here,  because  it  was  decided  upon  the 
ground  of  the  relation  existing  between  husband  and  wife  ;  and 
upon  a  similar  principle,  in  Richardson  v.  Du  Bois,"  it  was  de- 
cided that  an  insane  husband  was  not  liable,  he  not  having  held 
out  to  the  plaintiff  his  wife  as  his  agent.  In  Davidson  ?'.  Wood' 
proof  was  allowed  against  the  estate  of  a  testator  for  money 
advanced  to  his  wife  during  his  lunacy  and  applied  by  her  in 
payment  of  her  expenses. 

[Bramwell,  L.J.  Davidson  v.  Wood'  is  not  in  point  for  the 
case  before  us  ;  it  was  simply  a  case  of  liability  in  respect  of 
necessaries,  and  in  equity,  although  not  at  law,  a  husband  was 
bound  to  repay  money  advanced  to  her  in  order  to  be  expended 
in  necessaries.^] 

The  defendant's  counsel  may  rely  upon  Story  on  Agency, 
ch.  xviii.,  par.  481,  but  the  authorities  cited  in  the  note  thereto 
(7th  ed.)  seem  to  throw  doubt  upon  the  doctrine  laid  down  in 
the  text.  The  authorities  are  collected  in  Chitty  on  Contracts, 
ch.  ii.,  p.  133  (loth  ed.),  and  they  show  plainly  that  a  lunatic 
is  liable  upon  a  contract  into  which  he  enters  with  a  person 
dealing  with  him  dona  fide.  In  Manby  v.  Scott'"  three  of  the 
judges  held  that  an  idiot  was  liable  for  necessaries  supplied  to 
him  as  a  housekeeper. 

Home  Payne  for  the  defendant.  Mellor,  J.,  misdirected  the 
jury.  Upon  the  facts  proved  the  plaintiff  was  not  entitled  to  a 
finding  in  his  favor.     The  general  rule  is  that  a  lunatic  cannot 

1  8  C.  &  P.  679.  '  I  D.  J.  &  S.  465  ;  32  L.  J.  (Ch.)  400. 

«  9  Ves.  478.  «  Ibid. 

*  3  B.  &  Ad.  357,  n.  *  See  Jenner  v.  Morris,  3  D.  F.  &  J. 

*  2  M.  &  W.  2,  at  p.  8.  45  ;  30  L.  J.  (Ch.)  361. 

*  6  Ex.  636  ;  20  L.  J.  (Ex.)  309.  ""  i  Sid.  112, 

*  Law  Rep.  5  Q.  B.  51. 


304  DREW   V.    NUNN.  [CHAP.  I. 

enter  into  contract  ;  he  may  be  liable  for  necessaries,  but  it  is 
not  found  that  the  goods  supplied  were  necessaries  for  the  de- 
fendant's wife.  A  lunatic  is  incapable  of  contracting  marriage 
(Browning  v.  Reane')  ;  he  cannot  bind  himself  by  any  contract 
which  may  impose  a  burden  upon  him  (Howard  v.  Digby')  ;  he 
cannot  appoint  an  agent  (Stead  v.  Thornton  •/  Tarbuck  v. 
Bispham*).  In  Story  on  Agency,  ch.  ii.,  par.  6,  it  is  laid  down 
in  broad  terms  that  idiots  and  lunatics  are  wholly  incapable  of 
appointing  an  agent.  A  man  incapable  of  managing  his  affairs, 
and  of  judging  of  the  consequences  of  his  acts,  ought  not  to  be 
held  responsible  upon  contracts  for  goods  which  are  not  neces- 
saries. Upon  the  death  of  the  principal,  the  authority  of  the 
agent  is  terminated  ;  a  wife  cannot  bind  her  husband's  estate 
after  his  death  (Blades  v.  Free")  ;  nor  is  a  wife  personally  liable 
who  contracts  upon  her  husband's  behalf  in  ignorance  of  his 
decease  (Smout  v.  Ilbery').  A  similar  principle  ought  to  be 
applied  in  the  present  case.  A  lunatic  is  as  incapable  of  acting 
as  if  he  were  dead,  and  he  ought  not  to  be  held  responsible  for 
the  acts  of  an  agent  appointed  while  he  was  sane.  Owing  to 
his  mental  weakness  he  has  no  power  of  controlling  the  agent 
or  of  disavowing  acts  alleged  to  be  done  upon  his  behalf. 

Cur.  adv.  vult. 

The  following  judgments  were  delivered  : 

Brett,  L.J.  This  appeal  has  stood  over  for  a  long  time, 
principally  on  my  account,  in  order  to  ascertain  whether  it  can 
be  determined  upon  some  clear  principle.  I  have  found,  how- 
ever, that  the  law  upon  this  subject  stands  upon  a  very  unsatis- 
factory footing. 

The  action  was  tried  before  Mellor,  J.,  and  was  brought  to 
recover  the  price  of  boots  and  shoes  supplied  by  the  plaintiff  to 
the  defendant's  wife  while  the  defendant  was  insane.  It  is 
beyond  dispute  that  the  defendant,  when  sane,  had  given  his 
wife  absolute  authority  to  act  for  him,  and  held  her  out  to  the 
plaintiff  as  clothed  with  that  authority.  Afterward  the  defend- 
ant became  insane  so  as  to  be  unable  to  act  upon  his  own  behalf, 
and  his  insanity  was  such  as  to  be  apparent  to  any  one  with 
whom  he  might  attempt  to  enter  into  a  contract.  While  he  was 
in  this  state  of  mental  derangement,  his  wife  ordered  the  goods 
from  the  plaintiff,  who  had  no  notice  of  the  defendant's  insanity, 
and  was  supplied  with  them  by  him.  The  defendant  was  for 
some  time  confined  in  a  lunatic  asylum,  but  he  afterward  recov- 
ered his  reason,  and  he  has  defended  the  action  upon  the  ground 

'  2  Phillim.  Eccl.  Cas.  69.  •»  2  M.  &  W.  2,  at  p.  8,  per  Parke,  B. 

«  2  CI,  &  F.  634,  at  p.  661.  5  9  B.  &  C.  167. 

»  3  B.  &  Ad.  357,  n.  «ioM.  &W.  I. 


SEC.  l/J  DREW   7>.    NUNN.  305 

that  by  his  insanity  the  authority  which  he  gave  to  his  wife  was 
terminated,  and  that  he  is  not  liable  for  the  price  of  the  goods 
supplied  pursuant  to  her  order.  Mellor,  J.,  left  no  question  to 
the  jury  as  to  the  extent  of  the  defendant's  insanity,  but  in 
effect  directed  them  as  matter  of  law  that  the  plaintiff  was  en- 
titled to  recover.  I  think  it  must  be  taken  that  the  defendant's 
insanity  existed  to  the  extent  which  I  have  indicated. 

Upon  this  state  of  facts  two  questions  arise.  Does  insanity 
put  an  end  to  the  authority  of  the  agent  ?  One  would  expect 
to  find  that  this  question  has  been  long  decided  on  clear  princi- 
ples ;  but  on  looking  into  Story  on  Agency,  Scotch  authorities, 
Pothier,  and  other  French  authorities,  I  find  that  no  satisfac- 
tory conclusion  has  been  arrived  at.  If  such  insanity  as  existed 
here  did  not  put  an  end  to  the  agent's  authority,  it  would  be 
clear  that  the  plaintiff  is  entitled  to  succeed  ;  but  in  my  opinion 
insanity  of  this  kind  does  put  an  end  to  the  agent's  authority. 
It  cannot  be  disputed  that  some  cases  of  change  of  status  in  the 
principal  put  an  end  to  the  authority  of  the  agent  ;  thus  the 
bankruptcy  and  death  of  the  principal,  the  marriage  of  a  female 
principal,  all  put  an  end  to  the  authority  of  the  agent.  It  may 
be  argued  that  this  result  follows  from  the  circumstance  that  a 
different  principal  is  created.  Upon  bankruptcy  the  trustee 
becomes  the  principal  ;  upon  death  the  heir  or  devisee  as  to 
realty,  the  executor  or  administrator  as  to  personalty  ;  and 
upon  the  marriage  of  a  female  principal  her  husband  takes  her 
place.  And  it  has  been  argued  that  by  analogy  the  lunatic  con- 
tinues liable  until  a  fresh  principal — namely,  his  committee,  is 
appointed.  But  I  cannot  think  that  this  is  the  true  ground,  for 
executors  are,  at  least  in  some  instances,  bound  to  carry  out  the 
contracts  entered  into  by  their  testators.  I  think  that  the  satis- 
factory principle  to  be  adopted  is  that,  where  such  a  change 
occurs  as  to  the  principal  that  he  can  no  longer  act  for  himself, 
the  agent  whom  he  has  appointed  can  no  longer  act  for  him. 
In  the  present  case  a  great  change  had  occurred  in  the  condition 
of  the  principal.  He  was  so  far  afflicted  with  insanity  as  to  be 
disabled  from  acting  for  himself  ;  therefore  his  wife,  who  was 
his  agent,  could  no  longer  act  for  him.  Upon  the  ground  which 
I  have  pointed  out,  I  think  that  her  authority  was  terminated. 
It  seems  to  me  that  an  agent  is  liable  to  be  sued  by  a  third  per- 
son, if  he  assumes  to  act  on  his  principal's  behalf  after  he  had 
knowledge  of  his  principal's  incompetency  to  act.  In  a  case  of 
that  kind  he  is  acting  wrongfully.  The  defendant's  wife  must 
be  taken  to  have  been  aware  of  her  husband's  lunacy  ;  and  if 
she  had  assumed  to  act  on  his  behalf  with  any  one  to  whom  he 
himself  had  not  held  her  out  as  his  agent,  she  would  have  been 


3o6  DREW   7>.    NUNN.  [CHAP.  I. 

acting  wrongfully,  and,  but  for  the  circumstance  that  she  is 
married,  would  have  been  liable  in  an  action  to  compensate  the 
person  with  whom  she  assumed  to  act  on  her  husband's  behalf. 
In  my  opinion,  if  a  person  who  has  not  been  held  out  as  agent 
assumes  to  act  on  behalf  of  a  lunatic,  the  contract  is  void  against 
the  supposed  principal,  and  the  pretended  agent  is  liable  to  an 
action  for  misleading  an  innocent  person. 

The  second  question  then  arises,  what  is  the  consequence 
where  a  principal,  who  has  held  out  another  as  his  agent,  sub- 
sequently becomes  insane,  and  a  third  person  deals  with  the 
agent  without  notice  that  the  principal  is  a  lunatic  ?  Authority 
may  be  given  to  an  agent  in  two  ways.  First,  it  may  be  given 
by  some  instrument,  which  of  itself  asserts  that  the  authority 
is  thereby  created,  such  as  a  power  of  attorney  ;  it  is  of  itself 
an  assertion  by  the  principal  that  the  agent  may  act  for  him. 
Secondly,  an  authority  may  also  be  created  from  the  principal 
holding  out  the  agent  as  entitled  to  act  generally  for  him.  The 
agency  in  the  present  case  was  created  in  the  manner  last  men- 
tioned. As  between  the  defendant  and  his  wife,  the  agency 
expired  upon  his  becoming  to  her  knowledge  insane  ;  but  it 
seems  to  me  that  the  person  dealing  with  the  agent  without 
knowledge  of  the  principal's  insanity  has  a  right  to  enter  into  a 
contract  with  him,  and  the  principal,  although  a  lunatic,  is 
bound  so  that  he  cannot  repudiate  the  contract  assumed  to  be 
made  upon  his  behalf.  It  is  difficult  to  assign  the  ground  upon 
which  this  doctrine,  which,  however,  seems  to  me  to  be  the  true 
principle,  exists.  It  is  said  that  the  right  to  hold  the  insane 
principal  liable  depends  upon  contract.  I  have  a  difficulty  in 
assenting  to  this.  It  has  been  said  also  that  the  right  depends 
upon  estoppel.  It  cannot  see  that  an  estoppel  is  created.  But 
it  has  been  said  also  that  the  right  depends  upon  representa- 
tions made  by  the  principal  and  entitling  third  persons  to  act 
upon  them,  until  they  hear  that  those  representations  are 
withdrawn.  The  authorities  collected  in  Story  on  Agency, 
ch.  xviii.,  §  481,  p.  610  (7th  ed.),  seem  to  base  the  right  upon 
the  ground  of  public  policy  ;  it  is  there  said  in  effect  that  the 
existence  of  the  right  goes  in  aid  of  public  business.  It  is, 
however,  a  better  way  of  stating  the  rule  to  say  that  the  holding 
out  of  another  person  as  agent  is  a  representation  upon  which, 
at  the  time  when  it  was  made,  third  parties  had  a  right  to  act, 
and  if  no  insanity  had  supervened  would  still  have  had  a  right 
to  act.  In  this  case  the  wife  was  held  out  as  agent,  and  the 
plaintiff  acted  upon  the  defendant's  representation  as  to  her 
authority  without  notice  that  it  had  been  withdrawn.  The 
defendant  cannot  escape  from  the  consequences  of  the  repre- 


« 


SEC.  l/]  DREW   V.    NUNN.  30/ 

sentation  which  he  has  made  ;  he  cannot  withdraw  the  agent's 
authority  as  to  third  persons  without  giving  them  notice  of  the 
withdrawal.  The  principal  is  bound,  altliough  he  retracts  the 
agent's  authority,  if  he  has  not  given  notice  and  the  latter 
wrongfully  enters  into  a  contract  upon  his  behalf.  The  defend- 
ant became  insane  and  was  unable  to  withdraw  the  authority 
which  he  had  conferred  upon  his  wife.  He  may  be  an  innocent 
sufferer  by  her  conduct,  but  the  plaintiff,  who  dealt  with  her 
bond  fide,  is  also  innocent,  and  where  one  of  two  persons  both 
innocent  must  suffer  b)^  the  wrongful  act  of  a  third  person,  that 
person  making  the  representation  which,  as  between  the  two, 
was  the  original  cause  of  the  mischief,  must  be  the  sufferer  and 
must  bear  the  loss.  Here  it  does  not  lie  in  the  defendant's 
mouth  to  say  that  the  plaintiff  shall  be  the  sufferer. 

A  diflficulty  may  arise  in  the  application  of  a  general  principle 
such  as  this  is.  Suppose  that  a  person  makes  a  representation 
which  after  his  death  is  acted  upon  by  another  in  ignorance 
that  his  death  has  happened  :  in  my  view  the  estate  of  the  de- 
ceased will  be  bound  to  make  good  any  loss  which  may  have 
occurred  through  acting  upon  that  representation.  It  is,  how- 
ever, unnecessary  to  decide  this  point  to-day. 

Upon  the  grounds  above  stated  I  am  of  opinion  that,  although 
the  authority  of  the  defendant's  wife  was  put  an  end  to  by  his 
insanity,  and  although  she  had  no  authority  to  deal  with  the 
plaintiff,  nevertheless  the  latter  is  entitled  to  recover,  because 
the  defendant  while  he  was  sane  made  representations  to  the 
plaintiff,  upon  which  he  was  entitled  to  act  until  he  had  notice 
of  the  defendant's  insanity,  and  he  had  no  notice  of  the  insanity 
until  after  he  had  supplied  the  goods  for  the  price  of  which  he 
now  sues.     The  direction  of  Mellor,  J.,  was  right. 

Bramwell,  L.J.  I  agree  with  the  judgment  just  delivered 
by  Brett,  L.J.  It  must  be  taken  that  the  defendant  told  the 
plaintiff  that  his  wife  had  authority  to  bind  him  ;  when  that 
authority  had  been  given,  it  continued  to  exist,  so  far  as  tlie 
plaintiff  was  concerned,  until  it  was  revoked  and  until  lie  re- 
ceived notice  of  that  revocation.  It;  may  be  urged  tliat  this 
doctrine  does  not  extend  to  insanity,  which  is  not  an  inten- 
tional revocation  ;  but  I  think  that  insanity  forms  no  exception 
to  the  general  law  as  to  principal  and  agent.  It  may  be  hard 
upon  an  insane  principal,  if  his  agent  abuses  his  authority  ; 
but,  on  the  other  hand,  it  must  be  recollected  that  insanity  is 
not  a  privilege,  it  is  a  misfortune,  which  must  not  be  allowed 
to  injure  innocent  persons  ;  it  would  be  productive  of  mis- 
chievous consequences  if  insanity  annulled  every  representation 
made  by  the  person  afflicted  with  it  without  any  notice  being 


3o8  DREW   V.    NUNN.  [CHAP.  I. 

given  of  his  malady.  If  the  argument  for  the  defendant  were 
correct,  every  act  done  by  him  or  on  his  behalf  after  he  became 
insane  must  be  treated  as  a  nullity.  The  limits  of  the  doctrine 
as  to  the  liability  of  an  insane  person  may  be  uncertain,  and  it 
may  not  be  possible  to  lay  down  any  broad  rule  ;  but  I  think 
that  the  facts  before  us  resemble  the  case  of  a  guarantee.  Sup- 
pose that  a  promise  is  made  that,  if  the  promisee  will  supply 
goods  to  a  person  named,  the  promisor  will  see  that  they  are 
paid  for,  and  suppose  that  the  promisor  intends  to  put  an  end  to 
his  liability,  but  that  before  he  can  give  notice  to  the  promisee, 
the  latter  supplies  goods  to  the  person  named  ;  surely  the 
promisor  is  liable  for  the  price  ;  for  the  transaction  between 
the  promisor  and  promisee  was  equivalent  to  an  agreement  or 
license  which  was  to  continue  to  exist,  until  it  should  be  re- 
voked by  the  promisor,  and  until  notice  of  that  revocation 
should  be  received  by  the  promisee. 

It  has  been  assumed  by  Brett,  L.J.,  that  the  insanity  of  the 
defendant  was  such  as  to  amount  to  a  revocation  of  his  wife's 
authority.  I  doubt  whether  partial  mental  derangement  would 
have  that  effect.  I  think  that  in  order  to  annul  the  authority 
of  an  agent,  insanity  must  amount  to  dementia.  If  a  man 
becomes  so  far  insane  as  to  have  no  mind,  perhaps  he  ought  to 
be  deemed  dead  for  the  purpose  of  contracting.  I  think  that 
the  direction  of  Mellor,  J.,  was  right. 

Brett,  L.J.  I  am  requested  by  Cotton,  L.J.,  to  state  that 
he  agrees  with  the  conclusion  at  which  we  have  arrived  ;  but 
that  he  does  not  wish  to  decide  whether  the  authority  of  the 
defendant's  wife  was  terminated,  or  whether  the  liability  of  a 
contractor  lasts  until  a  committee  has  been  appointed.  He 
bases  his  decision  simply  upon  the  ground  that  the  defendant, 
by  holding  out  his  wife  as  agent,  entered  into  a  contract  with 
the  plaintiff  that  she  had  authority  to  act  upon  his  behalf,  and 
that  until  the  plaintiff  had  notice  that  this  authority  was  re- 
voked he  was  entitled  to  act  upon  the  defendant's  repre- 
sentations. 

I  wish  to  add  that  if  there  had  been  any  real  question  as  to 
the  extent  of  the  defendant's  insanity,  it  ought  to  have  been 
left  to  the  jury  ;  and  that  as  no  question  was  asked  of  the  jury, 
I  must  assume  that  the  defendant  was  insane  to  the  extent 
which  I  have  mentioned.  I  may  remark  that  from  the  mere 
fact  of  mental  derangement  it  ought  not  to  be  assumed  that  a 
person  is  incompetent  to  contract  ;  mere  weakness  of  mind  or 
partial  derangement  is  insufficient  to  exempt  a  person  from  re- 
sponsibility upon  the  engagements  into  which  he  has  entered. 

Appeal  dismissed. 


SEC.  l/]  BEACH   ct  al.   V.    FIRST   M.    E.    CHURCH.  309 


THOMAS  A.  BEACH  et  al.  v.  THE  FIRST  METHODIST 
EPISCOPAL   CHURCH. 

In  the  Supreme  Court  of  Illinois,  September  25,  1880. 
{^Reported  in  96  Illinois  Reports  177.] 

Appeal  from  the  Appellate  Court  for  the  Second  District  ; 
heard  in  that  Court  on  appeal  from  the  Circuit  Court  of  Liv- 
ingston County  ;  the  Hon.  N.  J.  Pillsbury,  J.,  presiding. 

L.  E.  Payson,  S.  S.  Lawrence,  and  D.  L.  Murdoch  for  the 
appellants. 

If.  If.  McDowell  and  C.  C.  Strawn  for  the  appellee. 

Dickey,  C.J.,  delivered  the  opinion  of  the  Court. 

The  record  shows  that  Lorenzo  Beach  had  presented  to  him 
a  subscription  paper  in  the  following  words  : 

'  Fairbury,  February  14,  1874. 

"  We,  the  undersigned,  agree  to  pay  the  sum  set  opposite  our 
respective  names,  for  the  purpose  of  erecting  a  new  M.  E. 
church  in  this  place,  said  sums  to  be  paid  as  follows  :  One  third 
to  be  paid  when  contract  is  let,  one  third  when  building  is  en- 
closed, one  third  when  building  is  completed.  Probable  cost 
of  said  church  from  ten  thousand  dollars  ($10,000)  to  twelve 
thousand  dollars  ($12,000)." 

To  which  he  attached  and  subscribed  the  following  : 

"  Fairbury,  1874. 

"  Dr.  Beach  gives  this  subscription  on  the  condition  that  the 
remainder  of  eight  thousand  dollars  is  subscribed. 

"  Lorenzo  Beach,         ......         $2000." 

On  April  20th,  1875,  Lorenzo  Beach  was  adjudged  by  the 
County  Court  of  Livingston  County,  insane,  and  Thomas  A. 
Beach  and  C.  C.  Bartlett  were  appointed  conservators  of  his 
person  and  property,  and  they  continued  to  act  as  such  until 
the  death  of  Dr.  Beach,  which  occurred  in  August,  1878. 

Other  subscriptions  to  the  amount  of  $8000  toward  the  build- 
ing of  this  church  were  obtained.  The  construction  of  the 
church  was  begun  about  September  of  1876  ;  and  while  there 
is  some  dispute  on  the  question  of  whether  the  church  was  ever 
fully  finished,  for  the  purposes  of  this  opinion  we  will  assume 
that  the  building  was  finished  before  June,  1877.  About  June, 
1877,  the  church  was  badly  damaged  by  a  hurricane.  In  Sep- 
tember, 1877,  when  the  trustees  and  members  of  the  congrega- 
tion were  consulting  as  to  the  propriety  of  immediately  repairing 


3IO  BEACH  et  al.   V.   FIRST  M.   E.   CHURCH.        [CHAP.  I. 

the  same,  one  of  the  conservators  of  the  person  and  property  of 
Dr.  Beach,  being  at  the  meeting,  it  is  said,  pledged  the  society 
the  prompt  and  full  payment  of  the  unpaid  residue  of  the  sub- 
scription. This  unpaid  residue  was  about  $666 — the  conserva- 
tors having  paid  the  first  two  instalments  of  the  subscription 
after  the  building  of  the  church  was  begun. 

This  action  was  brought  shortly  before  the  death  of  Dr.  Beach 
for  the  last  instalment  of  the  subscription,  $666.  After  his 
death  his  heirs  were  made  parties,  under  a  stipulation,  and 
defended  the  action. 

In  the  Circuit  Court  judgment  was  rendered  for  the  unpaid 
one  third  of  the  subscription  and  costs.  On  appeal  to  the 
Appellate  Court,  that  judgment  was  affirmed.  The  defendants 
appeal  to  this  Court. 

The  subscription  made  by  Dr.  Beach  was,  in  its  nature,  a 
mere  offer  to  pay  that  amount  of  money  to  the  church  upon  the 
condition  therein  expressed. 

There  is  nothing  in  the  record  tending  to  show  that  the 
church,  in  this  case,  took  any  action,  upon  the  faith  of  this  sub- 
scription, until  after  Dr.  Beach  was  adjudged  insane,  or  that 
the  church  paid  money  or  incurred  any  liability.  His  insanity, 
by  operation  of  law,  was  a  revocation  of  the  offer.  In  Pratt, 
Administratrix,  etc.,  v.  The  Trustees  of  the  Baptist  Society  of 
Elgin,  93  111.  475,  this  Court  said,  in  relation  to  such  a  subsc/ip- 
tion  :  "  The  promise,  in  such  case,  stands  as  a  mere  offer,  and 
may,  by  necessary  implication,  be  revoked  at  any  time  before 
it  is  acted  upon.  It  is  the  expending  of  money,  etc.,  or  incur- 
ring of  legal  liability  on  the  faith  of  a  promise,  which  gives  the 
right  of  action,  and  without  which  there  is  no  right  of  action. 
Until  acted  upon,  there  is  no  mutuality,  and,  being  only  an 
offer,  and  susceptible  of  revocation  at  any  time  before  being 
acted  upon,  it  follows  that  the  death  of  the  promisor,  before 
the  offer  is  acted  upon,  is  a  revocation  of  the  offer.  .  .  ,  The 
continuance  of  an  offer  is  in  the  nature  of  its  constant  repeti- 
tion, which,  of  course,  necessarily  requires  some  one  capable  of 
making  a  repetition.  Obviously  this  can  no  more  be  done  by 
a  dead  man  than  a  contract  can,  in  the  first  instance,  be  made 
by  a  dead  man." 

The  ground  upon  which  the  Court  rested  its  judgment  in  the 
Pratt  Case  was  the  want  of  capacity  on  the  part  of  the  promisor 
to  continue  his  promise  or  offer.  The  insanity  of  Dr.  Beach 
rendered  hirh,  in  law,  as  incapable  of  making  a  contract  or  of 
continuing  or  repeating  an  offer  to  the  church  as  if  he  had  been 
actually  dead. 

Conservators  of  the  person  and  property  of  an  insane  man 


SEC.  I/'.]  IMPERIAL   LOAN    CO.    V.   STONE.  3II 

may  perform  personal  contracts  of  their  ward  legally  subsisting, 
under  some  circumstances  ;  but  in  this  case  there  was  no  con- 
tract between  Dr.  Beach  and  the  church.  The  paper  signed  by 
Dr.  Beach  was  of  such  a  nature  that  no  binding  contract  sprung 
therefrom  until  the  church  had  accepted  the  same  by  incurring 
some  legal  liability,  or  expending  monej'  upon  the  faith  of  it. 
There  being  no  binding  contract  upon  Dr.  Beach  at  the  time 
that  his  conservators  made  the  payments,  they  had  no  lawful 
authority  to  make  the  same,  and  the  estate  of  Dr.  Beach  was 
not  bound  thereby. 

The  judgment  of  the  Appellate  Court  in  this  case  must  be 
reversed  and  the  cause  remanded. 

Judgment  reversed. 


THE  IMPERIAL   LOAN  COMPANY,  Limited,  v.  STONE. 

In  the  Court  of  Appeal,  March  3,  1892. 

[Reported  ifi  Law  Reports,  i  Queen's  Bench  (1892)  599.] 

Application  for  a  new  trial. 

The  action  was  brought  on  a  promissory  note  which  the  de- 
fendant, who  had  since  the  making  of  the  note  been  found  by 
inquisition  to  be  a  lunatic,  signed  as  surety.'  The  statement 
of  defence  alleged  that  the  defendant  when  he  signed  the  note 
was  so  insane  as  to  be  incapable  of  understanding  what  he  was 
doing,  and  this  allegation  was  repeated  with  the  further  allega- 
tion added  that  the  insanity  of  the  defendant  was  known  to  the 
plaintiffs. 

The  case  was  tried  before  Denman,  J.,  who  left  to  the  jury 
the  questions  whether  the  defendant,  when  he  signed  the  note, 
was  so  insane  as  not  to  be  capable  of  understanding  what  he 
•did,  and  whether  this  incapacity  was  known  to  the  agent  of  the 
plaintiffs  who  was  present  when  the  note  was  signed.  The  jury 
found  that  the  defendant  was  insane  when  he  signed  the  note  ; 
but  they  could  not  agree  upon  the  question  as  to  the  knowledge 
of  the  plaintiffs'  agent.  The  learned  judge  entered  a  verdict 
for  the  defendant.  The  plaintiffs  applied  for  judgment  or  for  a 
new  trial. 

Channell,  Q.C.,  and  Le  Riche  in  support  of  the  application. 

Witt,  Q.C.,  and  G.  A.  Scott  for  the  defendant. 

Lord  Esher,  M.R.     In  this  case  judgment  has  been  entered 

'  Although  involving  in  terms  only  the  question  of  the  capacity  o£  an 
insane  person  to  contract  the  case  is  inserted  in  this  section. — Ed. 


312  IMPERIAL    LOAN    CO.    V.    STONE.  [CHAP.  I. 

for  the  defendant  on  the  findings  of  the  jury,  although  the  jury- 
have  not  agreed  on  one  of  the  questions  left  to  them.  If  we 
are  of  opinion  that  the  entry  of  judgment  is  wrong,  no  other 
course  is  open  to  us  but  to  direct  a  new  trial. 

The  action  is  on  a  promissory  note  signed  by  the  defendant 
as  surety,  and  his  answer  is  that  he  was  so  insane  at  the  time 
he  sio-ned  the  note  that  he  was  not  capable  of  understanding 
the  transaction,  and  the  jury  have  found  that  this  was  so.  The 
defence  added  another  matter — namely,  that  the  plaintiffs  knew 
of  the  defendant's  state,  and  on  that  point  the  jury  have  been 
unable  to  agree.  This  raises  the  questions  whether  that  allega- 
tion is  a  necessary  part  of  the  plea,  and  if  so  on  whom  the 
burden  of  proving  it  lies. 

I  shall  not  try  to  go  through  the  cases  bearing  on  the  sub- 
ject ;  but  what  I  am  about  to  state  appears  to  me  to  be  the 
result  of  all  the  cases.  When  a  person  enters  into  a  contract, 
and  afterward  alleges  that  he  was  so  insane  at  the  time  that  he 
did  not  know  what  he  was  doing,  and  proves  the  allegation, 
the  contract  is  as  binding  on  him  in  every  respect,  whether  it  is 
executory  or  executed,  as  if  he  had  been  sane  when  he  made  it, 
unless  he  can  prove  further  that  the  person  with  whom  he  con- 
tracted knew  him  to  be  so  insane  as  not  to  be  capable  of  under- 
standing what  he  was  about. 

It  can  hardly  be  doubted  that  for  a  long  series  of  years,  if 
insanity  was  set  up  in  answer  to  an  action  for  breach  of  con- 
tract, it  must  have  been  pleaded,  and  the  plea  was  not  good 
unless  it  went  on  to  allege  knowledge  on  the  part  of  the  plain- 
tiff. The  fact  of  such  a  plea  being  required,  and  having  to  go 
to  that  extent,  shows  that  the  law  as  I  have  stated  it  was  gen- 
erally accepted.  The  burden  of  proof,  in  such  a  case,  must  lie 
on  the  defendant  ;  the  jury  have  disagreed  on  a  material  ques- 
tion in  the  cause,  and  as  there  is  no  finding  on  that  question 
the  case  must  go  back  for  a  new  trial. 

Fry,  L.J.  I  also  disagree  with  the  conclusion  of  the  learned 
judge.  The  law  relating  to  this  matter  I  take  to  be  of  very  old 
date,  and  much  light  is  thrown  upon  it  by  Littleton  in  his 
treatise  on  Tenures.  That  learned  author,  in  treating  of  de- 
scents, laid  down  (Litt.  §  405)  that  "  no  man  of  full  age  shall 
be  received  in  any  plea  by  the  law  to  stultify  and  disable  his 
own  person  ;"  but  he  went  on  to  point  out  that  the  heir  can 
avoid  a  deed  made  by  a  person  non  compos  mentis^  though  the 
person  himself  could  not.  The  subject  came  before  the  Court 
of  King's  Bench  in  Beverley's  Case,'  where  the  Court  laid  down, 
"  that  every  deed,  feoffment,  or  grant,  which  any  man  non  compos 

'  4  Co.  Rep.  \2'})b. 


SEC.  I/'.]  IMPERIAL    LOAN    CO.    V.    STONE.  313 

mentis  makes,  is  avoidable,  and  yet  shall  not  be  avoided  by  liim- 
self,  because  it  is  a  maxim  in  law  that  no  man  of  full  age  shall 
be,  in  any  plea  to  be  pleaded  by  him,  received  by  the  law  to 
stultify  himself,"  and  reference  was  made  to  Littleton's  Tenures. 
Before  that  date  Fitzherbert  (F.  N.  Br.  202  D.)  took  a  different 
viev/  ;  but  his  view  was  overruled  by  Stroud  z'.  Marshal.'  Then 
came  Coke,  who  adopted  the  view  of  Littleton  (Co.  Litt.  247/;), 
who,  he  said,  was  of  opinion  "  that  neither  by  plea  nor  by  writ 
nor  otherwise,  he  himselfe  shall  avoid  it,  but  his  heire  (in  re- 
spect his  ancestor  was  /ion  compos  inentis)  shall  avoid  it  by  entrie, 
plea,  or  writ.  And  herewith  the  greatest  authorities  of  our 
bookes  agree  ;  and  so  it  was  resolved  with  Littleton  in  Bev- 
erley's Case,^  where  it  is  said,  that  it  is  a  maxim  of  the  common 
law,  that  the  partie  shall  not  disable  himselfe."  Therefore, 
although  in  certain  cases  the  Crown,  and  in  other  cases  persons 
who  claimed  under  one  who  was  non  compos  mentis^  could  set  up 
the  disability,  the  man  himself  could  not.  In  Molton  v.  Cam- 
roux,'  which  was  affirmed  in  the  Exchequer  Chamber,*  Pollock, 
C.B.,  in  delivering  the  judgment  of  the  Court,  said  the  rule 
had  in  modern  times  been  relaxed,  and  unsoundness  of  mind 
would  now  be  a  good  defence  to  an  action  upon  a  contract,  if 
it  could  be  shown  that  the  defendant  was  not  of  capacity  to 
contract,  "  and  the  plaintiff  knew  it,"  and  for  this  lie  referred 
to  Browne  v.  Joddrell  ;°  Baxter  v.  Earl  of  Portsmouth  f  and 
Dane  v.  Viscountess  Kirkwall.'  It  thus  appears  that  there  has 
been  grafted  on  the  old  rule  the  exception  that  the  contracts  of 
a  person  who  is  non  compos  mentis  may  be  avoided  when  his  con- 
dition can  be  shown  to  have  been  known  to  the  plaintiff.  So 
far  as  I  know,  that  is  the  only  exception.  The  question  whether 
that  knowledge  exists  has  not  been  determined  in  this  case,  and 
consequently  we  cannot  say  that  the  exception  applies,  and 
judgment  could  not  properly  be  entered  for  the  defendant. 
There  must,  therefore,  be  a  new  trial. 

Lopes,  L.J.  It  seems  to  me  that  the  principle  to  be  deduced 
from  the  cases  may  be  summarized  thus  :  A  contract  made  by  a 
person  of  unsound  mind  is  not  voidable  at  that  person's  option 
if  the  other  party  to  the  contract  believed  at  the  time  he  made 
the  contract  that  the  person  with  whom  he  was  dealing  was  of 
sound  mind.  In  order  to  avoid  a  fair  contract  on  the  ground 
of  insanity,  the  mental  incapacity  of  the  one  must  be  known  to 
the  other  of  the  contracting  parties.  A  defendant  who  seeks  to 
avoid  a  contract  on  the  ground  of  his  insanity  must  plead  and 
prove  not  merely  his  incapacity,  but  also  the  plaintiff's  knowl- 

'  Cro.  Eliz.  398.  2  2  Ex.  487.         ^  i  Mood.  &  M.  105.         '  8  C.  &  P.  679, 

»  4  Co.  Rep.  123(5'.        ■»4Ex.  17.  «  5  B.  &  C.  170. 


314  THOMAS    c'.    THOMAS.  [CHAP.  I. 

edge  of  that  fact,  and  unless  he  proves  these  two  things  he  can- 
not succeed.     Applying  that  in  the  present  case,  it  is  apparent 
that  the  verdict  entered  for  the  defendant  cannot  stand,  but 
that  there  must  be  a  new  trial. 
Order  for  new  trial. 


Section  II. — Consideration.' 

(a)  Distinction  betiveen  motive  and  consideration. 

ELEANOR   THOMAS  v.  BENJAMIN    THOMAS. 

In  the  Queen's  Bench,  February  5,  1842. 

[Reported  itt  2  Queett's  Bench  Reports  851.] 

Assumpsit.  The  declaration  stated  an  agreement  between 
plaintiff  and  defendant  that  the  defendant  should,  when  thereto 
required  by  the  plaintiff,  by  all  necessary  deeds,  conveyances, 

'  The  mystery  of  consideration  has  possessed  a  peculiar  fascination  for 
writers  upon  the  English  Law  of  Contract.  No  fewer  than  three  distinct 
theories  of  its  origin  have  been  put  forward  within  the  last  eight  years. 
According  to  one  view,  "  the  requirements  of  consideration  in  all  parol  con- 
tracts is  simply  a  modified  generalization  of  qitid pro  quo  to  raise  a  debt  by 
parol."  *  On  the  other  hand,  consideration  is  described  as  "  a  modification 
of  the  Roman  principle  of  causa,  adopted  by  equity,  and  transferred  thence 
into  the  common  law."f  A  third  learned  writer  derives  the  action  of 
assumpsit  from  tliQ  action  on  the  case  for  deceit,  the  damage  to  the  plaintiff 
in  that  action  being  the  forerunner  of  the  "  detriment  to  the  promisee," 
which  constitutes  the  consideration  of  all  parol  contracts.:): 

To  the  present  writer  it  seems  impossible  to  refer  consideration  to  a 
single  source.  At  the  present  day  it  is  doubtless  just  and  expedient  to  re- 
solve every  consideration  into  a  detriment  to  the  promisee  incurred  at  the 
request  of  the  promisor.  But  this  definition  of  consideration  would  not 
have  covered  the  cases  of  the  sixteenth  century.  There  were  then  two  dis- 
tinct forms  of  consideration  :  (i)  detriment  ;  (2)  a  precedent  debt.  Of  these 
detriment  was  the  more  ancient,  having  become  established,  in  substance, 
as  early  as  1504.  On  the  other  hand,  no  case  has  been  found  recognizing 
the  validity  of  a  promise  to  pay  a  precedent  debt  before  1542.  These  two 
species  of  consideration,  so  diiTerent  in  their  nature,  are,  as  would  be  sur- 
mised, of  distinct  origin.  The  history  of  detriment  is  bound  up  with  the 
history  of  special  assumpsit,  whereas  the  consideration  based  upon  a  prece- 
dent debt  must  be  studied  m  the  development  of  indebitatus  assumpsit. — 
Ames,  The  History  of  Assumpsit,  i  Harvard  Law  Review  i.— Ed. 

*  Holmes.  Early  English  Equity,  i  L.  Q.  Rev.  171  ;  The  Common  Law, 
285.  A  similar  opinion  had  been  previously  advanced  by  Professor  Lang- 
dell,  Contracts,  ^  47. 

\  Salmon  1,  History  of  Contract,  3  L.  Q.  Rev.  166,  17S. 

X  Hare,  Contracts,  ch.  vii.  and  viii. 


SEC.  Iia.]  THOMAS   V.   THOMAS.  315 

assignments,  or  other  assurances,  grants,  etc.,  or  otherwise, 
assure  a  certain  dwelling  house  and  premises,  in  the  county  of 
Glamorgan,  unto  plaintiff  for  her  life,  or  so  long  as  she  should 
continue  a  widow  and  unmarried,  and  that  plaintiff  should,  at 
all  times  during  which  she  should  have  possession  of  the  said 
dwelling  house  and  premises,  pay  to  defendant  and  one  Samuel 
Thomas  (since  deceased),  their  executors,  administrators  or 
assigns,  the  sum  of  ^i  yearly  toward  the  ground  rent  payable 
in  respect  of  the  said  dwelling  house  and  other  premises  thereto 
adjoining,  and  keep  the  said  dwelling  house  and  premises  in 
good  and  tenantable  repair.  That  the  said  agreement  being 
made,  in  consideration  thereof,  and  of  plaintiff's  promise  to 
perform  the  agreement,  Samuel  Thomas  and  tlie  defendant 
promised  to  perform  the  same  ;  and  that,  although  plaintiff 
afterward  and  before  the  commencement  of  the  suit,  to  wit, 
etc.,  required  of  defendant  to  grant,  etc.,  by  a  necessary  and 
sufficient  deed,  etc.,  the  said  dwelling  house,  etc.,  to  plaintiff 
for  her  life,  or  while  she  continued  a  widow,  and  though  she 
had  then  continued,  etc.,  and  still  was  a  widow  and  unmarried, 
and  although  she  did,  to  wit,  on  etc.,  tender  to  the  defendant 
for  his  execution  a  certain  necessary  and  sufficient  deed,  etc., 
proper  and  sufficient  for  the  conveyance,  etc.,  and  although,  etc. 
(general  readiness  of  plaintiff  to  perform),  yet  defendant  did 
not  nor  would  then  or  at  any  other  time  convey,  etc. 

Pleas.  I.  JVo/i  assumpsit.  2.  That  there  was  not  the  consider- 
ation alleged  in  the  declaration  for  the  defendant's  promise. 
3.  Fraud  and  covin. 

Issues  thereon. 

At  the  trial,  before  Coltman,  J.,  at  the  Glamorganshire  Lent 
Assizes,  1841,  it  appeared  that  John  Thomas,  the  deceased  hus- 
band of  the  plaintiff,  at  the  time  of  his  death,  in  1837,  was  pos- 
sessed of  a  row  of  seven  dwelling  houses  in  Merthyr  Tidvil,  in 
one  of  which,  being  the  dwelling  house  in  question,  he  was  him- 
self residing  ;  and  that  by  his  will  he  appointed  his  brother 
Samuel  Thomas  (since  deceased)  and  the  defendant  executors 
thereof,  to  take  possession  of  all  his  houses,  etc.,  subject  to 
certain  payments  in  the  will  mentioned,  among  which  were  cer- 
tain charges  in  money  for  the  benefit  of  the  plaintiff.  In  the 
evening  before  the  day  of  his  death  he  expressed  orally  a  wish 
to  make  some  further  provision  for  his  wife  ;  and  on  the  follow- 
ing morning  he  declared  orally,  in  the  presence  of  two  wit- 
nesses, that  it  was  his  will  that  his  wife  should  have  either  the 
house  in  which  he  lived  and  all  that  it  contained,  or  an  addi- 
tional sum  of  ^100  instead  therecjf. 

This    declaiation    being    shortly    afterward    lirought    to    the 


3l6  THOMAS   V.   THOMAS.  [CHAP.  I. 

knowledge  of  Samuel  Thomas  and  the  defendant,  the  executors 
and  residuary  legatees,  they  consented  to  carry  the  intentions 
of  the  testator  so  expressed  into  effect  ;  and,  after  the  lapse  of 
a  few  days,  they  and  the  plaintiff  executed  the  agreement 
declared  upon  ;  which,  after  stating  the  parties,  and  briefly 
reciting  the  will,  proceeded  as  follows  : 

"  And,  whereas  the  said  testator,  shortly  before  his  death, 
declared,  in  the  presence  of  several  witnesses,  that  he  was  de- 
sirous his  said  wife  should  have  and  enjoy  during  her  life,  or 
so  long  as  she  should  continue  his  widow,  all  and  singular  the 
dwelling  house,"  etc.,  "or  ;^ioo  out  of  his  personal  estate," 
in  addition  to  the  respective  legacies  and  bequests  given  her  in 
and  by  his  said  will  ;  "  but  such  declaration  and  desire  was  not 
reduced  to  writing  in  the  lifetime  of  the  said  John  Thomas  and 
read  over  to  him  ;  but  the  said  Samuel  Thomas  and  Benjamin 
Thomas  are  fully  convinced  and  satisfied  that  such  was  the  de- 
sire of  the  said  testator,  and  are  willing  and  desirous  that  such 
intention  should  be  carried  into  full  effect.  Now  these  presents 
witness,  and  it  is  hereby  agreed  and  declared  by  and  between 
the  parties,  that,  in  consideration  of  such  desire  and  of  the 
premises,"  the  executors  would  convey  the  dwelling  house,  etc., 
to  the  plaintiff  and  her  assigns  during  her  life,  or  for  so  long 
a  time  as  she  should  continue  a  widow  and  unmarried  ;  "  pro- 
vided, nevertheless,  and  it  is  hereby  further  agreed  and  declared, 
that  the  said  Eleanor  Thomas,  or  her  assigns,  shall  and  will,  at 
all  times  during  which  she  shall  have  possession  of  the  said 
dwelling  house,  etc.,  pay  to  the  said  Samuel  Thomas  and  Ben- 
jamin Thomas,  their  executors,  etc.,  the  sum  of  ^i  yearly 
toward  the  ground  rent  payable  in  respect  of  the  said  dwelling 
house  and  other  premises  thereto  adjoining,  and  shall  and  will 
keep  the  said  dwelling  house  and  premises  in  good  and  tenant- 
able  repair  ;"  with  other  provisions  not  affecting  the  questions 
in  this  case. 

The  plaintiff  was  left  in  possession  of  the  dwelling  house  and 
premises  for  some  time  ;  but  the  defendant,  after  the  death  of 
his  co-executor,  refused  to  execute  a  conveyance  tendered  to 
him  for  execution  pursuant  to  the  agreement,  and,  shortly 
before  the  trial,  brought  an  ejectment,  under  which  he  turned 
the  plaintiff  out  of  possession.  It  was  objected  for  the  defend- 
ant that,  a  part  of  the  consideration  proved  being  omitted  in 
the  declaration,  there  was  a  fatal  variance.  The  learned  judge 
overruled  the  objection,  reserving  leave  to  move  to  enter  a 
nonsuit.  Ultimately  a  verdict  was  found  for  the  plaintiff  on  all 
the  issues  ;  and,  in  Easter  Term  last,  a  rule  nisi  was  obtained 
pursuant  to  the  leave  reserved. 


SEC.  ua.]  THOMAS  7'.   THOMAS.  317 

Chilton  and  W.  M.  James  now  showed  cause. 

E.  V.   Williams  contra. 

Lord  Dexman,  C.J.  There  is  nothing  in  this  case  but  a  great 
deal  of  ingenuity,  and  a  little  wilful  blindness  to  the  actual 
terms  of  the  instrument  itself.  There  is  nothing  whatever  to 
show  that  the  ground  rent  was  payable  to  a  superior  landlord  ; 
and  the  stipulation  for  the  payment  of  it  is  not  a  mere  proviso, 
but  an  express  agreement.  (His  Lordship  here  read  the  pro- 
viso.) This  is  in  terms  on  express  agreement,  and  shows  a  suffi- 
cient legal  consideration  quite  independent  of  the  moral  feeling 
which  disposed  the  executors  to  enter  into  such  a  contract. 
Mr.  Williams's  definition  of  consideration  is  too  large  ;  the  word 
causa  in  the  passage  referred  to  means  one  which  confers  what 
the  law  considers  a  benefit  on  the  party.  Then  the  obligation 
to  repair  is  one  which  might  impose  charges  heavier  than  the 
value  of  the  life  estate. 

P.A.TTESON,  J.  It  would  be  giving  to  causa  too  large  a  con- 
struction if  we  were  to  adopt  the  view  urged  for  the  defendant  ; 
it  would  be  confounding  consideration  with  motive.'  Motive  is 
not  the  same  thing  with  consideration.  Consideration  means 
something  which  is  of  some  value  in  the  eye  of  the  law,  moving 
from  the  plaintiff  ;  it  may  be  some  benefit  to  the  plaintiff,  or 
some  detriment  to  the  defendant  ;  but  at  all  events  it  must  be 
moving  from  the  plaintiff.  Now  that  which  is  suggested  as  the 
consideration  here,  a  pious  respect  for  the  wishes  of  the  testator, 
does  not  in  any  way  move  from  the  plaintiff ;  it  moves  from  the 
testator  ;  therefore,  legally  speaking,  it  forms  no  part  of  the 
consideration.  Then  it  is  said  that,  if  that  be  so,  there  is  no 
consideration  at  all,  it  is  a  mere  voluntary  gift  ;  but  when  we 
look  at  the  agreement  we  find  that  this  is  not  a  mere  proviso 
that  the  donee  shall  take  the  gift  with  the  burdens  ;  but  it  is 
an  express  agreement  to  pay  what  seems  to  be  a  fresh  appor- 
tionment of  a  ground  rent,  and  which  is  made  payable  not  to  a 
superior  landlord,  but  to  the  executors.  So  that  this  rent  is 
clearly  not  something  incident  to  the  assignment  of  the  house, 
for  in  that  case,  instead  of  being  payable  to  the  executors,  it 
would  have  been  payable  to  the  landlord.  Then  as  to  the  re- 
pairs, these  houses  may  very  possibly  be  held  under  a  lease  con- 
taining covenants  to  repair  ;  but  we  know  nothing  about  it,  for 
anything  that  appears  the  liability  to  repair  is  first  created  by 
this  instrument.  The  proviso  certainly  struck  me  at  first  as 
Mr.  Williams  put  it,  that  the  rent  and  repairs  were  merely 
attached  to  the  gift  by  the  donors  ;  and,  had  the  instrument 
been  executed  by  the  donors  only,  there  might  have  been  some 
'  See  note  ('),  p.        ,  post. 


3i8  THOMAS   V.   THOMAS.  [CHAP.  I. 

ground  for  that  construction  ;  but  the  fact  is  not  so.  Then  it 
is  suggested  that  this  would  be  held  to  be  a  mere  voluntary  con- 
veyance as  against  a  subsequent  purchaser  for  value  ;  possibly 
that  might  be  so,  but  suppose  it  would,  the  plaintiff  contracts 
to  take  it,  and  does  take  it,  whatever  it  is,  for  better  for  worse, 
perhaps  a  bond  Jide  purchase  for  a  valuable  consideration  might 
override  it,  but  that  cannot  be  helped. 

Coleridge,  J.  The  concessions  made  in  the  course  of  the 
argument  have,  in  fact,  disposed  of  the  case.  It  is  conceded 
that  mere  motive  need  not  be  stated,  and  we  are  not  obliged  to 
look  for  the  legal  consideration  in  any  particular  part  of  the  in- 
strument, merely  because  the  consideration  is  usually  stated  in 
some  particular  part  ;  ut  res  magis  valeat,  we  may  look  to  any 
part.  In  this  instrument,  in  the  part  where  it  is  usual  to  state 
the  consideration,  nothing  certainly  is  expressed  but  a  wish  to 
fulfil  the  intentions  of  the  testator,  but  in  another  part  we  find 
an  express  agreement  to  pay  an  annual  sum  for  a  particular 
purpose,  and  also  a  distinct  agreement  to  repair.  If  these  had 
occurred  in  the  first  part  of  the  instrument,  it  could  hardly  have 
been  argued  that  the  declaration  was  not  well  drawn  and  sup- 
ported by  the  evidence.  As  to  the  suggestion  of  this  being  a 
voluntary  conveyance,  my  impression  is  that  this  payment  of 
j£i  annually  is  more  than  a  good  consideration,  it  is  a  valuable 
consideration,  it  is  clearly  a  thing  newly  created  and  not  part 
of  the  old  ground  rent. 

Rule  discharged.' 

'  In  a  commentary  on  the  Code  Civil,  in  Codes  Frangais  Expliques,  etc.,  by 
J.  A.  Rogron,  Paris,  1836,  the  words  of  the  Code,  "  L'obUgation  sans  cause, 
ou  sur  un  fausse  cause,  ou  sur  un  cause  illicite,  ne  peut  avoir  aucun  effet" 
{ante,  p.  857)  are  discussed  ;  and  the  note  upon  "  sans  cause"  is  as  follows  : 

"  La  cause  est  ce  qui  determine  I'engagement  que  prend  une  partie  dans 
un  contrat  ;  il  ne  faut  pas  la  confondre  avec  la  cause  implicite  du  contrat, 
autrement  le  motif  qui  porte  a  contracter.  La  cause  de  I'engagement  d'une 
partie  est  le  fait  ou  la  promesse  de  I'autre  partie  ;  elle  peut  aussi  consister 
dans  une  pure  liberalite  de  la  part  de  I'une  des  parties  :  ainsi,  lorsque  je 
m'oblige  a  payer  mille  francs  a  Paul,  pour  tels  services  que  son  pere  m'a 
rendus,  la  cause  determinante  du  contrat,  ce  sont  les  services  qui  m'ont  ete 
rendus  ;  le  motif  Q;m  m'a  porte  a  contracter,  c'est  le  desir  de  m'acquitter 
envers  lui  des  services  de  son  pere  ;  si  celui-ci  ne  m'a  jamais  rendu  les  ser- 
vices dont  il  a  ete  parle  dans  I'acte,  le  contrat  est  sans  cause.  Je  m'oblige 
a  donner  mille  francs  a  Paul  pour  qu'il  suive  une  affaire  pendante  devant 
le  tribunal  de  la  Seme  :  la  cause  determinante  est  la  promesse  de  Paul  qu'il 
suivra  mon  affaire  ;  si  elle  est  jugee  irrevocablement  au  moment  ou  nous 
avons  stipule,  le  contrat  est  sans  cause.  Autre  exemple  :  je  vous  vends  ma 
maison  ;  la  cause  de  la  vente  est,  d'un  cote,  la  maison  elle-meme,  de  I'autre, 
le  prix.  Enfin  je  donne,  dans  la  forme  des  dispositions  entre  vifs,  ma 
maison  a  Paul,  qui,  I'accepte  :  ma  liberalite  est  ici  la  seule  cause  du  con- 
trat."    P.  209. 


A 


SEC.  lia.]  PHILPOT  7'.    GRUNINGER.  319 


PHILPOT  V.  GRUNINGER. 

In  the   Supreme   Court  of   the   United  States,  December 

Term,  1871. 

[Reported  hi  14  IVallace  570.] 

Error  to  the  Circuit  Court  for  the  Northern  District  of 
Illinois  ;  the  case  being  this  : 

On  October  19th,  1864,  Gruninger,  by  articles  of  agreement, 
sold,  or  agreed  to  sell,  to  B.  Philpot  and  H.  Picket,  residing  at 
Titusville,  Pa.  (who,  with  George  Sherman,  of  Philadelphia, 
had  been  speculating  in  oil  wells),  a  well  "  on  the  Blood  Farm," 
near  the  town  named  ;  Philpot  and  Picket  agreeing  by  the  arti- 
cles to  pay  Gruninger  $3500  within  thirty  days.  The  money 
was  not  thus  paid.  Gruninger,  after  the  sale,  went  to  Massa- 
chusetts, but  by  February  24th,  1865,  had  returned  to  Titus- 
ville. On  the  day  just  mentioned  Picket  writes  to  him  express- 
ing satisfaction  at  his  return,  and  acknowledging  the  receipt  of 
a  letter  from  him  "  some  time  since  ;  an  answer  to  which  had 
been  neglected  on  account  of  press  of  business  until  it  had 
passed  out  of  mind,"  and  saying  : 

"  I  think  we  can  fix  up  that  Blood  Farm  matter  satisfactorily 
when  you  come  up." 

By  April  21st,  1865,  Philpot,  Picket,  and  the  Sherman  already 
named  had  become  interested  as  partners,  under  the  name  of 
Philpot,  Sherman  &  Co.,  in  the  well  on  Blood  Farm  (if  indeed 
Sherman  had  not  been  partner  with  the  other  two  from  the  first) 
and  in  other  oil  wells  ;  and  on  that  day  the  partnership,  under 
the  firm  name,  along  v/ith  several  other  projectors  in  oil  (not, 
however,  including  Gruninger)  entered  into  an  agreement  to 
form  a  joint-stock  company  ;  Philpot,  Sherman  &  Co.  agreeing 
to  put  into  the  company  certain  wells,  but  not  this  one,  which 
they  had  bought  or  agreed  to  buy,  on  the  Blood  Farm. 

On  May  6lh,  1865,  Gruninger  also  agreed  to  put  in  a  certain 
well  which  he  still  owned — one  on  the  Smith  Farm — and  on  the 
same  day,  by  deed,  witnessed  and  acknowledged,  **  in  consid- 
eration of  the  sum  of  $3000,"  which  was  acknowledged  to  have 
been  to  him  "  paid,  and  tlie  receipt  of  which  he  acknowledged," 
conveyed  to  Philpot,  Sherman  &  Co.,  the  already  mentioned 
well  on  the  Blood  Farm.  On  that  same  day,  but  without  re- 
citing on  account  of  what  transaction,  Philpot  gave  the  firm 
note  for  $3000,  payable  to  Gruninger  on  demand. 


320  PHILPOT  V.    GRUNINGER.  [CHAP.  I. 

The  joint-6tock  company  apparently  fell  through.  Gruninger, 
at  any  rate,  would  not  put  in  his  well  on  Smith's  farm. 

On  July  sth  Picket,  one  of  the  persons  to  whom  Gruninger 
had  agreed  to  sell  the  well  on  the  Blood  Farm,  and  a  member 
of  the  now  admitted  firm  of  Philpot,  Sherman  &  Co.,  writes  to 
Gruninger  from  Titusville,  signing  the  firm  name  : 

"  We  have  learned  that  the  note  given  you  by  our  firm  has 
been  sent  to  Philadelphia  for  collection.  All  /  can  say  is,  we 
are,  at  present,  unable  to  pay  it.  The  change  in  times  has  so 
contracted  our  means  as  to  make  it  doubtful  if  we  are  able  to 
pay  your  note  in  cash  at  all.  We  will  be  glad  to  settle  with 
you  by  letting  you  have  some  good  property  any  time  ;  but 
money,  at  the  present  time,  is  out  of  the  question  with  us.  Let 
us  hear  from  you  soon." 

And  on  the  same  day  Philpot,  in  Philadelphia,  writes  to  him 
from  there  : 

"  The  note  given  by  me  to  you  has  been  presented  by  a  col- 
lector for  payment.  We  think  this  a  strange  proceeding  under 
the  circumstances  the  note  was  obtained,  and  a  part  having 
been  paid.  We  have  your  name  to  a  contract  assigning  us  your 
interest  in  well  on  the  Smith  Farm,  and  we  would  recom- 
mend that  you  withdraw  that  note,  and,  as  soon  as  convenient, 
meet  us  in  Philadelphia,  when  a  satisfactory  adjustment  of  the 
whole  can  be  arrived  at.  If  you  push  that  note  we  shall 
assuredly  demand  that  interest  which  we  have  you  bound  for, 
and  proceed  accordingly." 

Gruninger  replies,  two  days  afterward,  by  a  single  letter 
addressed  to  the  firm  : 

"  Yours  of  July  5th  was  received  with  one  also  of  same 
date.  You  write  me  that  the  note  given  by  you  to  me  was  pre- 
sented to  you  by  a  collector  for  payment,  and  you  think  it  a 
very  strange  proceeding.  I  myself  can't  see  anything  strange 
in  it.  You  know  that  the  note  ought  to  have  been  paid  this 
long  time.     I  am  in  need  of  money,  and  must  have  it. 

"  I  am  sorry  to  see  you  mention  in  your  letter  about  a  con- 
tract I  assigned  to  you,  and  you  would  '  recommend  me  to  with- 
draw that  note  as  soon  as  convenient,'  etc.;  and  that  if  I  push 
that  note  you  shall  demand  the  interest  which  you  say  you  have 
me  bound  for,  and  proceed  accordingly.  If  you  think  this  kind 
of  talk  goes  with  me,  you  better  try  it.  I  am  sorry  that  you 
have  wrote  so.  And  the  note  1  have  given  to  collect  must  and 
shall  be  collected  if —  I  am  sorry  to  answer  you  in  this  way, 
but  you  commenced  it." 


SEC.  na.]  PHILPOT  V.   GRUNINGER,  32 1 

No  arrangement  being  made,  Gruninger  sued  all  three  per- 
sons as  partners  on  the  note.'  Philpot  and  Picket  pleatled 
jointly  and  Sherman  separately  and  alone.  The  defence  was, 
in  substance,  tliat  the  note  was  given  by  them  to  Gruninger  in 
consideration  of  the  agreement  of  Gruninger  that  he  would  be- 
come a  member  of  the  proposed  oil  company,  and  put  certain 
property  in  it,  and  also  in  consideration  of  the  transfer  to  them 
of  the  well  on  tlie  Blood  Farm  ;  and  that  he  had  failed  and  re- 
fused to  perform  his  agreement,  and  that  the  well  had  no  value. 

Gruninger,  on  the  other  hand,  asserted  that  it  was  given  in 
consideration  alone  of  the  transactions  of  October  19th,  1864, 
and  of  an  existing  debt. 

The  controversy  thus  involved  was,  of  course,  what  the  con- 
sideration of  the  note  really  was. 

On  the  trial  the  defendants  offered  in  evidence  articles  of 
partnership  dated  November  8th,  1864,  and  between  them,  in 
order  to  show  that  the  partnership  between  the  three  was  not 
in  existence  when  the  articles  of  agreement  of  October  19th, 
1864,  were  made  ;  but  they  did  not  offer  or  propose  to  offer  any 
other  evidence  of  the  same  fact. 

The  Court  rejected  the  articles. 

The  plaintiff  and  defendants  each  gave  evidence  tending  to 
show  on  the  one  side  that  the  well  on  the  Blood  Farm  was 
worth  what  it  cost,  on  the  other  that  it  was  worthless. 

In  charging,  after  adverting  to  the  various  letters  already 
quoted,  including  that  of  July  5th  by  Picket,  in  the  firm's  name, 
in  which  no  objection  is  taken  to  the  validity  of  the  note,  and 
the  cause  of  its  non-payment  is  stated  to  be  that  the  firm  was 
then  unable  to  pay  it  in  money,  and  after  adverting  to  some 
other  evidence  the  Court  said  : 

"  If,  in  point  of  fact,  the  note  was  given  in  consideration  of 
past  transactions,  of  obligations  already  accrued  or  accruing, 
then,  of  course,  the  defence  fails. 

"  If,  on  the  other  hand,  the  note  was  given  in  consideration 
of  the  agreement,  on  the  day,  May  6th,  made  by  Gruninger,  to 
enter  into  the  company,  and  also  in  consideration  of  the  trans- 
fer of  the  said  well,  and  he  did  not  enter  into  the  company,  but 
failed  to  comply  with  his  agreement,  and  there  was  no  value  in 
the  well,  as  stated  in  the  plea,  then  the  defence  is  made  out." 

The  Court,  however,  said  further  : 

"  But  it  is  proper  for  you   to  consider  whether  or  not  this 
might  have  been  the  state  of  the  case  :  that  there  were  trans- 
actions between  the  parties;  that  there  was  a  claim  on  one  side, 
and  which  may  have  arisen,   or  did   arise,   in   consequence  of 
'  See  supra,  p.  1,  n.  i. 


322  PIIILPOT   V.    GRUNIXGER.  [CHAP.  I. 

these  transactions.  Now,  was  there  a  present,  existing  indebt- 
edness from  Philpot  and  Picket,  or  from  Philpot,  Sherman  & 
Co.,  to  Gruninger,  and  was  the  execution  of  this  agreement  by 
Gruninger  on  May  6th  simply  a  motive  for  the  giving  of  the 
note  and  not  the  consideration  of  the  note  ?  It  may  be  that 
that  was  held  out  as  an  inducement  to  the  defendants  to  give 
the  note,  as  a  motive  for  putting  the  debt  in  the  shape  of  a  note 
rather  than  let  it  remain  in  its  then  present  form.  If  that  were 
so,  then  the  defence  would  fail,  because  that  proceeds  upon  the 
ground,  as  I  understand,  that  the  actual  consideration  of  the 
giving  of  the  note,  not  the  motive  for  putting  the  claim  in  that 
form,  was  the  signing  of  this  agreement  of  May  6th,  and  the 
transfer  of  the  well  on  the  Blood  Farm. 

"  It  may  well  happen  that  A.  may  owe  a  valid  debt  to  B., 
and  B.  may  say  to  A.,  '  If  you  will  put  the  debt  in  the  shape  of 
a  note  I  will  do  some  act  for  you  ;  '  and  then,  when  it  is  done, 
the  promise  to  put  the  debt  in  that  shape  is  not  the  considera- 
tion of  the  note,  but  the  debt  which  is  due  from  one  to  the 
other." 

The  jury  found  for  the  plaintiff,  and  judgment  was  given 
accordingly.  On  exceptions  to  the  portion  of  the  charge  last 
above  quoted,  and  to  the  rejection  of  the  partnership  articles, 
and  on  some  other  matters  not  necessary  in  any  part  to  be 
reported,  the  case  was  now  here. 

S.  B.  Gookins  and  J.  H.  Roberts  for  the  plaintiffs  in  error. 

O.  K.  Hutchi7igs,  cotitra. 

Strong,  J.,  delivered  the  opinion  of  the  Court. 

That  a  part  of  the  consideration  of  the  note  was  the  debt  due 
for  the  oil  well  which  Gruninger  had  sold  six  months  before  to 
Philpot  and  Picket,  or  that  the  note  was  intended  as  an  adjust- 
ment of  that  debt,  is  but  faintly  denied  ;  but  the  plaintiffs  in 
error  insist  that  a  part  at.  least  of  the  consideration  was  the 
agreement  of  the  promisee  to  contribute  to  the  formation  of  the 
proposed  company,  an  agreement  which  they  allege  he  has 
failed  to  perform  ;  and  they  complain  that  the  jury  were  misled 
by  an  instruction  that  they  might  consider  whether  the  signing 
of  the  agreement,  or  the  undertaking  of  Gruninger  to  put  into 
the  company  the  interests  mentioned,  was  anything  more  than 
an  inducement  to  the  maiing  of  the  note  by  the  defendants, 
furnishing  a  motive  for  giving  it,  but  constituting  no  part  of 
the  consideration. 

It  is,  however,  not  easy  to  see  how  the  jury  could  have  been 
misled,  to  the  injury  of  the  plaintiffs  in  error,  by  calling  atten- 
tion to  a  possible  distinction  between  the  motive  which  may 
have  induced  giving  the  note  and  its  consideration,  even  if  no 


I 


SEC.  Ilrt-.]  FIIILPOT   V.    GRUXIXC.ER.  523, 

such  distinction  can  be  made.  For  if  it  be  assumed,  as  was 
claimed,  that  the  promisee's  undertaking  to  unite  in  the  forma- 
tion of  a  joint-stock  company  was  a  part  of  the  consideration^ 
it  could  not  aid  the  promisors.  It  would  not  be  a  step  toward 
showing  that  the  consideration  had  failed.  Gruninger's  neglect 
or  refusal  to  perform  his  agreement  is  not  to  be  confounded 
with  the  agreement  itself.  The  latter  was  the  consideration, 
not  its  performance.  He  might  be  answerable  in  damages  for 
non-performance,  but  his  undertaking  to  perform  would  have 
been  the  price  of  the  defendants'  promise.  That  undertaking 
they  still  have,  and  with  it  the  full  consideration.  Nothing  is 
more  common  than  a  promise  in  consideration  of  a  promise, 
and  the  defendants'  pleas  in  this  case  aver  that  Gruninger's 
undertaking  was  the  price  of  their  stipulation.  Were  it  then 
conceded,  as  the  defendants  claimed,  the  jurj^  would  not  have 
been  warranted  in  finding  that  the  consideration  of  the  note  had 
failed. 

It  is,  however,  not  to  be  doubted  that  there  is  a  clear  distinc- 
tion sometimes  between  the  motive  that  may  induce  to  entering- 
into  a  contract  and  the  consideration  of  the  contract.  Nothing 
is  consideration  that  is  not  regarded  as  such  by  both  parties. 
It  is  the  price  voluntarily  paid  for  a  promisor's  undertaking. 
An  expectation  of  results  often  leads  to  the  formation  of  a  con- 
tract, but  neither  the  expectation  nor  the  result  is  "  the  cause 
or  meritorious  occasion  requiring  a  mutual  recompense  in  fact 
or  in  law.'"  Surely  a  creditor  may  do  a  favor  to  his  debtor,  or 
may  enter  into  a  new  and  independent  contract  with  him,  in- 
duced by  which  the  debtor  may  assent  to  giving  a  note  for  the 
previously  existing  indebtedness.  Without  the  favor  or  the 
new  contract  there  is  in  such  a  case  a  full  consideration  for  the 
note,  and  the  parties  may  not  have  contemplated  that  the  favor 
or  the  new  contract  was  to  be  paid  for.  To  regard  them  as 
entering  into  the  consideration  of  the  note  would  be  to  make  a 
contract  for  the  parties  to  which  their  minds  never  assented. 

It  is  argued  that  if  Sherman  did  not  owe  the  debt. due  from 
Philpot  and  Picket  to  Gruninger  (as  the  jury  might  have  found), 
there  was  no  motive  or  inducement,  much  less  even  considera- 
tion, for  his  becoming  a  joint  promisor  in  the  note,  unless  it 
was  Gruninger's  agreement,  and  hence  it  is  inferred  that  the 
jury  were  misled  in  being  allowed  to  consider  that  agreement 
as  merely  a  motive  or  inducement  to  his  assumption.  But  he 
was  then  a  partner  of  Philpot  and  Picket,  and  a  joint  owner 
with  them  of  the  property  for  which  the  debt  had  been  con- 
tracted.    A  consideration  moving  to  his  copromisors  was  enough 

'  Dyer,  2>oi>b. 


324  PILLANS  &  ROSE  V.  VAN  MIEROP  &  HOPKINS.  [CHAP.  I. 

to  support  his  promise.  The  note  was  given  for  a  smaller  sum 
than  the  price  for  which  the  property  had  been  sold  to  them. 
It  was  accepted  as  a  settlement  of  the  promisee's  claim,  and  a 
conveyance  of  the  property  was  made  to  all  the  defendants,  in- 
cluding Sherman.  There  was,  then,  adequate  consideration  for 
his  promise  apart  from  Gruninger's  agreement  to  put  other 
property  into  the  proposed  company.  For  these  reasons,  we 
think,  there  was  no  error  in  the  instructions  given  by  the  Court 
to  the  jury.' 

Judgment  is  affirmed. 


{b^   When  consideration  necessary. 

PILLANS  &  ROSE  v.   VAN    MIEROP  &  HOPKINS. 

In  the  King's  Bench,  April  30,  1765. 

\^Reported  in  3  Burrow  1663.] 

On  Friday,  January  25th  last,  Attorney-General  Norton,  on 
behalf  of  the  plaintiffs,  moved  for  a  new  trial.  He  moved  it  as 
upon  a  verdict  against  evidence,  the  substance  of  which  evidence 
was  as  follows  : 

One  White,  a  merchant  in  Ireland,  desired  to  draw  upon  the 
plaintiffs,  who  were  merchants  at  Rotterdam  in  Holland,  for 
jQ^oo  payable  to  one  Clifford  ;  and  proposed  to  give  them 
credit  upon  a  good  house  in  London  for  their  reimbursement, 
or  any  other  method  of  reimbursement. 

The  plaintiffs,  in  answer,  desired  a  confirmed  credit  upon  a 
house  of  rank  in  London  as  the  condition  of  their  accepting  the 
bill.  White  names  the  house  of  the  defendants  as  this  house  of 
rank,  and  offers  credit  upon  them.  Whereupon  the  plaintiffs 
honored  the  draft  and  paid  the  money,  and  then  wrote  to  the 
defendants.  Van  Mierop  &  Hopkins,  merchants  in  London 
(to  whom  White  also  wrote  about  the  same  time),  desiring  to 
know  "  whether  they  would  accept  such  bills  as  they,  the  plain- 
tiffs, should  in  about  a  month's  time  draw  upon  the  said  Van 
Mierop's  &  Hopkins's  house  here  in  London  for  ;!^8oo  upon 
the  credit  of  White  ;"  and  they,  having  received  their  assent, 
accordingly  drew  upon  the  defendants.  In  the  interim  White 
failed  before  their  draft  came  to  hand  or  was  even  drawn, 
and  the  defendants  gave  notice  of  it  to  the  plaintiffs  and  forbid 
their  drawing  upon  them.  Which  they  nevertheless  did,  and 
therefore  the  defendants  refused  to  pay  their  bills. 

'  A  portion  of  the  opinion  has  been  omitted.  —Ed. 


SEC.  ui>.]    PILLANS  &  ROSE  V.  VAN  MIEROP  &  HOPKINS.  325 

On  the  trial  a  verdict  was  found  for  the  defendants. 

Upon  showing  cause,  on  Monday,  February  nth  last,  it  turned 
upon  the  several  letters  that  had  respectively  passed  between 
the  plaintiffs  and  defendants  and  White.  The  letters  were  read. 
First  those  from  White  &  Co.  in  Ireland  to  the  plaintiffs  in  Hol- 
land (by  which  it  appeared  that  Pillans  &  Rose  had  then  accepted 
the  bills  drawn  upon  them  by  White  payable  to  Clifford),  then 
those  of  the  plaintiffs  to  the  defendants,  and  also  White's  to  the 
defendants,  then  those  of  the  defendants  to  the  plaintiffs,  agree- 
ing to  honor  their  bill  drawn  on  acount  of  White  ;  the  letter 
from  the  defendants  to  the  plaintiffs  informing  them  "  that 
White  had  stopt  payment,"  and  desiring  them  not  to  draw,  as 
they  could  not  accept  their  draft,  and  lastly  that  which  the 
plaintiffs  wrote  to  the  defendants,  "  That  they  should  draw  on 
them,  holding  them  not  to  be  at  liberty  to  withdraw  from  their 
engagement." 

Davy'  and  Wallace  for  the  defendants.  They  observed  that 
the  plaintiffs  had  given  credit  to  White  above  a  month  before 
the  defendants  had  agreed  to  accept  their  draft,  for  it  appears 
by  White's  letter  of  February  i6th,  1762,  that  Pillans  &  Rose 
had  then  actually  accepted  Clifford's  bills,  but  Van  Mierop  & 
Hopkins  did  not  agree  to  honor  their  drafts  till  March  19th, 
1762.  Therefore  the  consideration  was  past  and  done  before 
their  promise  was  made,  and  they  argued  and  principally  in- 
sisted that  for  one  man  to  undertake  "  to  pay  another  man's 
debt"  was  a  void  undertaking,  unless  there  was  some  consider- 
ation for  such  undertaking,  and  that  a  mere  general  promise, 
without  benefit  to  the  promisor  or  loss  to  the  promisee,  was  a 
nudum  pactum.  And  they  cited  i  Bulstr.  120  ;  Thorner  z;.  Field, 
Dyer  272  pi.  31  ;  Hunt  v.  Bate,  2  Vern.  224,  225  ;  Cecil  et  al.  v. 
Earl  of  Salisbury,  i  Ro.  Abr.  11,  pi.  i,  Letter  Q.  "  Consider- 
ation executed."  Yelv.  40,  41  and  2  Strange,  933  ;  Hayes  v. 
Warren,  where  a  past  consideration  was  holden  insufficient  to 
raise  an  assumpsit. 

Walker  and  Dunning  for  the  plaintiffs.  They  denied  this  to 
be  a  past  consideration,  and  insisted  that  the  liberty  given  to 
the  plaintiffs  "  to  draw  upon  a  confirmed  house  in  London" 
(which  was  prior  to  the  undertaking  by  the  defendants),  was 
the  consideration  of  the  credit  given  by  the  plaintiffs  to  White's 
drafts,  and  that  this  was  a  good  and  sufficient  consideration  for 
the  undertaking  made  by  the  defendants.  It  relates  back  to 
the  original  transaction. 

If  any  one  promises  to  pay  for  goods  delivered  to  a  third 
person,  such  promise,  being  in  writing,  is  a  good  one.  And 
here  White  had  had  ^800  from  the  plaintiffs  upon  this  assur- 


3" 


6  PILLANS  &  ROSE  V.  VAN  MIEROP  &  HOPKINS.  [CHAP.  I. 


ance,  and  the  defendants  undertake  in  writing,  in  pursuance 
and  completion  of  this  original  assurance,  to  be  answerable  for 
White's  reimbursing  the  plaintiffs.  And  a  promise  in  writing 
is  out  of  the  statute. 

This  case  does  not  fall  within  those  that  have  been  cited,  for 
Van  Mierop  &  Hopkins  have  made  themselves  originally 
liable.  An  ex  post  facto  event  cannot  alter  the  nature  of  an 
original  promise.  Their  original  promise  made  them  liable  and 
bound  them.  And  they  are  obliged,  both  by  law  and  in  honor 
and  honesty  to  perform  it. 

It  is  a  mercantile  transaction,  and  it  must  be  considered, 
upon  the  whole  of  it,  as  an  admittance  "  that  the  defendants 
either  had  or  soon  would  have  effects  of  White's  in  their 
hands." 

Lord  Mansfield.  The  objection  is  "  that  the  letter  whereby 
Van  Mierop  &  Hopkins  undertake  to  honor  the  plaintiff's  bills 
is  nudum  pactum.     The  other  side  deny  it. 

This  is  the  only  question  here. 

But  this  is  quite  different  from  what  passed  at  the  trial  ;  the 
nudu?n  pactiifti"  was  not  mentioned  at  that  time.  The  grounds  it 
was  argued  upon  there  were  :  First,  that  this  imported  to  be  a 
credit  given  to  Pillans  &  Rose  in  prospect  of  a  future  credit  to 
be  given  by  them  to  White,  and  that  this  credit  might  well  be 
countermanded  before  the  advancement  of  any  money,  and  this 
is  so.  Secondly,  that  there  was  a  fraud,  for  that  Van  Mierop 
&  Hopkins  had  reason  to  think  that  White  had  sent  goods  to 
Pillans  &  Rose,  whereas  this  was  a  mere  lending  of  credit. 
Thirdly,  that  if  Pillans  &  Rose  had  received  goods  from 
White,  and  retained  them  till  he  failed  the  defendant's  under- 
taking was  revocable. 

I  was  then  of  opinion  that  Van  Mierop  &  Hopkins  were 
bound  by  their  letter  unless  there  was  some  fraud  upon  them, 
for  that  they  had  engaged  under  their  hands  in  a  mercantile 
transaction  "  to  give  credit  for  Pillans  &  Rose's  reimburse- 
ment." And  I  did  not  see  it  to  be  future,  as  had  been  objected, 
nor  did  I  see  any  fraud  ;  and  nothing  was  then  urged  about  its 
being  nudum  pactum. 

I  have  no  idea  that  promises  "  for  the  debt  of  another"  are 
applicable  to  the  present  case. 

This  is  (as  Walker  said)  a  mercantile  transaction,  and  it  de- 
pends upon  these  letters  from  merchant  to  merchant  about 
honoring  bills  to  such  an  amount,  and  this  credit  is  given  upon 
a  supposition  "  that  the  person  who  is  to  draw  upon  the  under- 
takers within  a  certain  time  has  goods  in  his  hands  or  will  have 
them."     Here  Pillans  &  Rose  trusted  to  this  undertaking,  and 


SEC.  11^.]    PILLANS  &  ROSE  V.  VAN  MIEROP  &  HOPKINS.  327 

there  is  no  fraud.  Therefore  it  is  quite  upon  another  founda- 
tion than  that  of  a  naked  promise  from  one  "  to  pay  the  debt 
of  another." 

WiLMOT,  J.  I  own  the  want  of  consideration  at  first  occurred 
to  me,  but  I  now  am  satisfied  that  this  case  has  nothing  to  do 
with  the  cases  of  undertakings  by  one  "  to  pay  the  debt  of 
another."  In  those  cases  it  is  settled  "  that  where  the  consid- 
eration is  past  the  action  will  not  lie,"  and  yet  this  seems  a  hard 
case.  The  mere  promise  "  to  pay  the  debt  of  another"  without 
any  consideration  at  all  is  nudum  pactum^  but  the  least  spark  of 
a  consideration  will  be  sufficient.  It  seems  almost  implied  that 
there  must  be  some  consideration,  but  if  there  be  none  at  all  it 
is  nudum  pactum.  The  statute  must  mean  such  a  special  promise 
as  would  have  supported  an  action. 

But  all  this  is  out  of  the  present  case.  So  also,  I  think,  is  all 
the  precedent  correspondence. 

It  lies  in  a  narrow  compass. 

White,  Pillans  &  Rose,  and  Van  Mierop  &  Hopkins  had 
all  a  correspondence  together  ;  they  have  intercourse  together 
mutually  in  mercantile  transactions.  Pillans  &  Rose  write  to 
Van  Mierop  &  Hopkins,  10  know  "  whether  they  will  honor 
their  drafts  for  ^800  in  about  a  month's  time."  They  say 
"  they  will."  Now  it  strikes  me  (as  Walker  said)  that  it  admits 
"  that  they  either  have  assets  or  effects  of  White's  in  their 
hands,"  or  "  that  they  have  credit  upon  him,"  Now  by  this 
undertaking  of  a  good  house  in  London,  and  relying  upon  it, 
they  are  deluded  and  diverted  from  using  any  legal  diligence 
to  pursue  White,  or  even  not  to  part  with  any  effects  of  his 
which  they  might  have  in  their  hands.  Therefore  this  seems 
to  be  an  irrevocable  undertaking  by  Van  Mierop  &  Hopkins, 
and  they  ought  to  be  bound  by  it.  Consequently  there  ought 
to  be  a  new  trial. 

Lord  Mansfield.  A  letter  of  credit  may  be  given  as  well  for 
money  already  advanced  as  for  money  to  be  advanced  in  future- 
Let  it  be  argued  again  the  next  term,  and  you  shall  have  the 
opinion  of  the  whole  Court. 

Ulterius  concilium. 

Yesterday  this  matter  accordingly  came  on  again,  and  was 
argued  by  Wallace  for  the  defendants,  and  by  the  same  counsel 
as  argued  last  term  for  the  plaintiffs. 

The  latter  repeated  and  enforced  their  arguments.  They 
said  the  consideration  moved  from  White  to  the  defendants  not 
from  the  plaintiffs,  Pillans  &  Rose,  to  the  defendants,  and  as 
the  defendants  have  undertaken  for  White  they  can't  revoke  or 
retract  their  engagement. 


328  PILLANS  &  ROSE  V.  VAN  MIEROP  &  HOPKINS.  [CHAP.  I. 

This  case  is  not  like  the  cases  cited,  some  of  which  are  strange 
cases,  and  not  founded  on  solid  or  sufficient  reasons,  and  in 
others  of  them  there  was  no  meritorious  consideration  at  all. 
And  Walker  cited  Hardres,  71  ;  Reynolds  v.  Prosser,  where  the 
consideration  was  adjudged  sufficient,  notwithstanding  all  the 
reasoning  of  Sir  Thomas  Hardres  and  all  the  cases  cited  by 
him.  That  was  an  assumpsit  by  a  stranger  in  consideration  that 
the  plaintiff  would  forbear  to  prosecute  Lord  Abergavenny 
upon  a  judgment,  in  the  name  of  the  original  plaintiff,  by  virtue 
of  a  letter  of  attorney  "  to  receive  it  to  his  own  use." 

Da7y  was  heard  this  morning  on  behalf  of  the  defendants, 
and  urged  that  the  plaintiffs  gave  credit  to  White  upon  his 
promising  to  reimburse  them,  and  he  said  there  was  a  fraudu- 
lent concealment  of  facts. 

White's  first  letter  could  have  no  influence  on  the  plaintiffs, 
for  they  afterward  desired  a  confirmed  credit  upon  a  house  of 
rank  in  London,  so  that  they  did  not  rely  on  White's  first  letter 
which  offered  credit  on  the  defendants  or  any  other  method  of 
reimbursement.  And  nothing  had  then  passed  between  White 
and  the  defendants,  for  the  first  letter  between  them  was  on  Feb- 
ruary i6th  (a  fortnight  after),  and  then  the  defendants  were 
deceived  into  a  false  opinion  "  that  it  was  for  a  future  credit 
and  not  to  secure  a  past  acceptance  of  White's  bills  by  the 
plaintiffs."  And  this  concealment  of  circumstances  is  sufficient 
to  vitiate  the  contract.  The  plaintiffs  had  accepted  a  bill  of 
^800  of  White's  a  fortnight  before  the  defendant's  letter  of 
February  i6th,  which  bill  the  plaintiffs  had  accepted  upon 
assurance  of  credit  on  a  house  in  London  to  reimburse  them. 
And  this  transaction  was  fraudulently  concealed,  both  by  White 
and  the  plaintiffs  from  the  defendants.  If  this  had  been  dis- 
closed, the  defendants  would  have  plainly  seen  "  that  the  plain- 
tiffs doubted  of  White's  sufficiency"  by  their  requiring  further 
security  for  his  already  contracted  debt. 

All  letters  of  credit  relate  to  future  credit,  not  to  debts  before 
incurred  ;  nor  can  the  advancer  of  money  thereupon  include  an 
old  debt  before  incurred. 

A  bill  cannot  be  accepted  before  it  is  drawn.  This  is  only  a 
promise  to  accept,  for  it  is  only  a  promise  "  to  honor  the  bill, 
not  a  promise  to  pay  it." 

A  promise  "  to  pay  a  past  debt  of  another  person"  is  void  at 
common  law  for  want  of  consideration,  unless  there  be  at  least 
an  implied  promise  from  the  debtee  "  to  forbear  suing  the 
original  debtor."  But  here  was  a  debt  clearly  contracted  by 
White  with  the  plaintiffs  on  the  credit  of  White,  and  there  is  no 
promise  from  the  plaintiffs  "  to  forbear  suing  White."      A  naked 


I 


m 


SEC.  ud.]    PILLANS  &  ROSE  Z'.  VAN  MIEROP  &  HOPKINS.  329 

promise  is  a  void  promise  ;  the  consideration  must  be  executory, 
not  past  or  executed. 

Mansfield,  Lord,  asked  if  any  case  could  be  found  where  the 
undertaking  holden  to  be  a  nudum  pactum  was  in  writing. 

Davy.  It  was  anciently  doubted  "  whether  a  written  accept- 
ance of  a  bill  of  exchange  was  binding  for  want  of  a  considera- 
tion."    It  is  so  said  somewhere  in  Lutwyche. 

Mansfield,  Lord.  This  is  a  matter  of  great  consequence  to 
trade  and  commerce  in  every  light. 

If  there  was  any  kind  of  fraud  in  this  transaction  the  collu- 
sion and  mala  fides  would  have  vacated  the  contract.  But  from 
these  letters  it  seems  to  me  clear  that  there  was  none.  The 
first  proposal  from  White  was  "  to  reimburse  the  plaintiffs  by  a 
remittance  or  by  credit  on  the  house  of  Van  Mierop  ;"  this  was 
the  alternative  he  proposed.  The  plaintiffs  chose  the  latter. 
Both  the  plaintiffs  and  White  wrote  to  Van  Mierop  &  Co.  They 
answered  "  that  they  would  honor  the  plaintiffs'  drafts,"  so  that 
the  defendants  assent  to  the  proposal  made  by  White  and  ratify 
it.  And  it  does  not  seem  at  all  that  the  plaintiffs  then  doubted 
of  White's  sufficiency  or  meant  to  conceal  anything  from  the 
defendants. 

If  there  be  no  fraud  it  is  a  mere  question  of  law.  The  law 
of  merchants  and  the  law  of  the  land  is  the  same.  A  witness 
cannot  be  admitted  to  prove  the  law  of  merchants.  We  must 
consider  it  as  a  point  of  law.  A  nudum  pactum  does  not  exist  in 
the  usage  and  law  of  merchants. 

I  take  it  that  the  ancient  notion  about  the  want  of  considera- 
tion was  for  the  sake  of  evidence  only,  for  when  it  is  reduced 
into  writing,  as  in  covenants,  specialties,  bonds,  etc.,'  there  was 
no  objection  to  the  want  of  consideration.  And  the  Statute  of 
Frauds  proceeded  upon  the  same  principle. 

In  commercial  cases  among  merchants  the  want  of  consider- 
ation is  not  an  objection. 

This  is  just  the  same  thing  as  if  White  had  drawn  on  Van 
Mierop  &  Hopkins,  payable  to  the  plaintiffs  ;  it  had  been 
nothing  to  the  plaintiffs  whether  Van  Mierop  &  Co.  had  effects 
of  White's  in  their  hands  or  not  if  they  had  accepted  his  bill. 
And  this  amounts  to  the  same  thing.  ."  I  will  give  the  bill  due 
honor"  is,  in  effect,  accepting  it.  If  a  man  agrees  "  that  he  will 
do  the  formal  part,"  the  law  looks  upon  it  (in  the  case  of  an 
acceptance  of  a  bill)  as  if  actually  done.  This  is  an  engage- 
ment "  to  accept  the  bill  if  there  was  a  necessity  to  accept  it, 
and  to  pay  it  when  due,"  and  they  could  not  afterward  retract. 
It  would  be  very  destructive  to  trade  and  to  trust  in  commercial 

1  V.  ante,  p.  1639. 


330  PILLANS  &  ROSE  V.  VAN  MIEROP  &  HOPKINS.  [CHAP,  I. 

dealing  if  they  could.  There  was  nothing  of  nudum  pactum  men- 
tioned to  the  jury,  nor  was  it,  I  dare  say,  at  all  in  their  idea  or 
contemplation. 

I  think  the  point  of  law  is  with  the  plaintiffs. 

WiLMOT,  J.  The  question  is  "  whether  this  action  can  be 
supported  upon  the  breach  of  this  agreement." 

I  can  find  none  of  those  cases  that  go  upon  its  being  7iudum 
pactum  that  are  in  writing  ;  they  are  all  upon  parol. 

I  have  traced  this  matter  of  the  nudum  pactuf?i,  and  it  is  very 
curious. 

He  then  explained  the  principle  of  an  agreement  being  looked 
upon  as  a  nudum  pactum,  and  how  the  notion  of  a  nudum  pactum 
first  came  into  .our  law.  He  said  it  was  echoed  from  the  civil 
law,  "  Ex  nudo pacta  non  oritur  actio."  Vinnius  gives  the  reason 
in  lib.  3,  tit.  De  Obligationibus,  4to  edition,  596.  If  by  stipu- 
lation (and  a  fortiori  \i  by  writing)  it  was  good  without  consid- 
eration. There  was  no  radical  defect  in  the  contract  for  want 
of  consideration.  But  it  was  made  requisite,  in  order  to  put 
people  upon  attention  and  reflection,  and  to  prevent  obscurity 
and  uncertainty,  and  in  that  view  either  writing  or  certain  for- 
malities were  required.     Idem,  on  Justinian,  4to  edition,  614. 

Therefore  it  was  intended  as  a  guard  against  rash  inconsid- 
erate declarations,  but  if  an  undertaking  was  entered  into  upon 
deliberation  and  reflection  it  had  activity,  and  such  promises 
were  binding.  Both  Grotius  and  Puffendorff  hold  them  obliga- 
tory by  the  law  of  nations.  Grot.,  lib.  2,  c.  11,  De  Promissis  ; 
Puffend.,  lib.  3,  c.  5.  They  are  morally  good,  and  only  require 
ascertainment.  Therefore  there  is  no  reason  to  extend  the 
principle  or  carry  it  further. 

There  would  have  been  no  doubt  upon  the  present  case 
according  to  the  Roman  law,  because  here  is  both  stipulation 
(in  the  express  Roman  form)  and  writing. 

Bracton  (who  wrote'  temp.  Hen.  3)  is  the  first  of  our  lawyers 
that  mentions  this.  His  writings  interweave  a  great  many 
things  out  of  the  Roman  law.  In  his  third  book,  cap.  i,  De 
Actionibus,  he  distinguishes  between  naked  and  clothed  con- 
tracts. He  says  that  "  Obligatio  est  mater  actionis,"  and  that  it 
may  arise  ex  contractu,  mult  is  modis  ;  sicut  ex  conventione,  etc.,  sicut 
sunt  pacta,  conventa,  qucz  7mda  sunt  aliquando,  aliquatido  vestita,  etc. 

Our  own  lawyers  have  adopted  exactly  the  same  idea  as  the 
Roman  law.  Plowden^  308^,  in  the  case  of  Sheryngton  & 
Pledal  V.   Strotton  and  Others,   mentions  it,   and  no  one  con- 

'  Sub.  ultima  tempora  regis  H.  3. 

'  This  probably  was  Plowden's  own  argument.  I  suppose  he  was  himself 
that  apprentice  of  the  Middle  Temple  who  argued  for  the  defendants. 


SEC.  11^]    PILLANS  &  ROSE  t'.  VAN  MIEROP  &  HOPKINS.  33  I 

tradicted  it.  He  lays  down  the  distinction  between  contracts  or 
agreements  in  words  (which  are  more  base)  and  contracts  or 
agreements  in  writing  (which  are  more  high),  and  puts  the  dis- 
tinction upon  the  want  of  deliberation  in  the  former  case  and 
the  full  exercise  of  it  in  the  latter.  His  words  are  the  marrow 
of  what  the  Roman  lawyers  had  said.  "  Words  pass  from  men 
lightly,"  but  where  the  agreement  is  made  by  deed  there  is 
more  stay,  etc.;  for  first  there  is,  etc.,  and  thirdly,  he  delivers 
the  writing  as  his  deed.  "  The  delivery  of  the  deed  is  a  cere- 
mony in  law,  signifying  fully  his  good  will  that  the  thing  in  the 
deed  should  pass  from  him  who  made  the  deed  to  the  other. 
And  therefore  a  deed  which  must  necessarily  be  made  upon  great 
thought  and  deliberation  shall  bind  without  regard  to  the  con- 
sideration." 

The  voidness  of  the  consideration  is  the  same  in  reality  in 
both  cases,  the  reason  of  adopting  the  rule  was  the  same  in  both 
cases,  though  there  is  a  difference  in  the  ceremonies  required  by 
each  law  ;  but  no  ineflficacy  arises  merely  from  the  naked  promise. 

Therefore  if  it  stood  only  upon  the  naked  promise,  its  being 
in  this  case  reduced  into  writing  is  a  sufficient  guard  against 
surprise,  and  therefore  the  rule  of  nudum  pactum  does  not  apply 
in  the  present  case. 

I  cannot  find  that  a  nudu?n  pactum  evidenced  by  writing  has 
been  ever  holden  bad,  and  I  should  think  it  good  ;  though, 
where  it  is  merely  verbal  it  is  bad.  Yet  I  give  no  opinion  upon 
its  being  good  always  when  in  writing. 

Many  of  the  old  cases  are  strange  and  absurd,  so  also  are 
some  of  the  modern  ones,  particularly  that  of  Hayes  v.  Warren.' 

It  is  now  settled  "  that  where  the  act  is  done  at  the  request  of 
the  person  promising,  it  will  be  a  sufficient  foundation  to  graft 
the  promise  upon." 

In  another  instance  the  strictness  has  been  relaxed  ;  as,  for 
instance, °  burying  a  son  or^  curing  a  son,  the  considerations 
were  both  past  and  yet  holden  good.  It  has  been  melting  down 
into  common  sense  of  late  times. 

However,  I  do  here  see  a  consideration.  If  it  be  a  departure 
from  any  right,  it  will  be  sufficient  to  graft  a  verbal  promise 
upon.  Now  here.  White,  living  in  Ireland,  writes  to  the  plain- 
tiffs "  to  honor  his  draft  for  ^800^  payable  ten  weeks  after." 

'  V.  2  Sir  J.  S.  933.  I  have  a  very  full  note  of  this  case.  The  reason  of 
the  reversal  of  the  judgment  was,  "  That  it  did  not  appear  by  the  declara- 
tion to  be  either  for  the  bettefit  or  at  the  request  of  the  defendant." 

*  Church  &  Church's  case  ;  cited  in  Raym.  260. 

*  V.  2  Leon.  iii. 

*  For  between  Ireland  and  Holland  each  usance  is  one  month. 


332  PILLANS  &  ROSE  V.  VAN  MIEROP  &  HOPKINS.  [cHAP.  I. 

The  plaintiffs  agree  to  it  on  condition  that  they  be  made  safe 
at  all  events.  White  offers  good  credit  on  a  house  in  London, 
and  draws,  and  the  plaintiffs  accept  his  draft.  Then  White 
writes  to  them  "  to  draw  on  Van  Mierop  &  Hopkins,"  to 
whom  the  plaintiffs  write  "  to  inquire  if  they  will  honor  their 
draft;"  they  engage  "  that  they  will."  This  transaction  has 
prevented,  stopped,  and  disabled  the  plaintiffs  from  calling 
upon  White  for  the  performance  of  his  engagement,  for  White's 
engagement  is  complied  with,  so  that  the  plaintiffs  could  not 
call  upon  him  for  this  security.  I  do  not  speak  of  the  money,, 
for  that  was  not  payable  till  after  two  usances  and  a  half.  But 
the  plaintiffs  were  prevented  from  calling  upon  White  for  a 
performance  of  his  engagement  "  to  give  them  credit  on  a  good 
house  in  London  for  reimbursement,"  so  that  here  is  a  good 
consideration.  The  law  does  not  weigh  the  quantum  of  the  con- 
sideration. The  suspension  of  the  plaintiff's  right  "  to  call 
upon  White  for  a  compliance  with  his  engagement"  is  sufficient 
to  support  an  action,  even  if  it  be  a  suspension  of  the  right,  for 
a  day  only,  or  for  ever  so  little  a  time. 

But  to  consider  this  as  a  commercial  case.  All  nations  ought 
to  have  their  laws  conformable  to  each  other  in  such  cases. 
Fides  servanda  est,  simplicitas  juris  gentium  pravaleat.  Hodierni 
mores  slvq  such,  that  the  old  notion  about  the  nudum  pactum  is 
not  strictly  observed  as  a  rule. 

On  a  question  of  this  nature  "  whether  by  the  law  of  nations 
such  an  engagement  as  this  shall  bind"  the  law  is  to  judge. 

The  true  reason  why  the  acceptance  of  a  bill  of  exchange 
shall  bind  is  not  on  account  of  the  acceptor's  having  or  being 
supposed  to  have  effects  in  hand,  but  for  the  convenience  of 
trade  and  commerce.  Fides  est  servanda.  An  acceptance  for 
the  honor  of  the  drawer  shall  bind  the  acceptor,  so  shall  a 
verbal  acceptance.  And  whether  this  be  an  actual  acceptance 
or  an  agreement  to  accept,  it  ought  equally  to  bind.  An  agree- 
ment "  to  accept  a  bill  to  be  drawn  in  future"  would  (as  it 
seems  to  me)  by  connection  and  relation  bind  on  account  of  the 
antecedent  relation.  And  I  see  no  difference  between  its  being 
before  or  after  the  bill  was  drawn.  Here  was  an  agreement 
sufficient  to  bind  the  defendants  to  pay  the  bill  ;  agreeing  "  to 
honor  it"  is  agreeing  to  pay  it. 

I  see  no  sort  of  fraud.  It  rather  seems  as  if  the  defendants 
had  effects  of  White's  in  their  hands.  And  it  does  not  appear 
to  me  that  the  defendants  would  not  have  honored  the  plain- 
tiffs' drafts,  even  though  they  had  known  that  it  was  future 
credit. 

But  whether  the  plaintiffs  or  the  defendants  had  effects  of 


A 


SEC.  u/k]    PILLANS  &  ROSE  7'.  VAX  MIEROP  &  HOPKINS.  333 

White's  in  tlieir  hands  or  not,  we  must  determine  on  the  gen- 
eral doctrine. 

And  I  am  of  opinion  that  there  ought  to  be  a  new  trial. 

Yates,  J.,  was  of  tlie  same  opinion.  He  said  it  was  a  case  of 
great  consequence  to  commerce,  and  therefore  he  wouhi  give 
both  his  opinion  and  his  reasons. 

The  arguments  on  the  side  of  the  defendants  terminate  in  its 
being  a  midiwi pactum,  and  therefore  void. 

This  depends  upon  two  questions. 

First  question.  "  Whether  this  be  a  promise  without  a  con- 
sideration." 

Second  question.  If  it  is,  then  "  whether  this  promise  shall 
not  be  binding  of  itself  without  any  consideration." 

First.  The  draft  drawn  by  White  on  the  plaintiffs,  payable 
to  Clifford,  is  no  part  of  the  consideration  of  the  undertaking 
by  the  defendants.  The  draft  payable  to  Clifford  is  never  men- 
tioned to  the  defendants.  They  are  asked  "  whether  they  will 
answer  a  draft  from  the  plaintiffs  upon  them  ;"  they  answer 
"  they  will  honor  such  a  draft  on  them." 

Whether  the  defendants  had  or  had  not  effects  of  White's  in 
their  hands  is  immaterial. 

Any"  damage  to  another  or  suspension  or  forbearance  of  his 
right  is  a  foundation  for  an  undertaking,  and  will  make  it  bind- 
ing, though  no  actual  benefit  accrues  to  the  party  undertaking. 

Now  here  the  promise  and  undertaking  of  the  defendants  did 
occasion  a  possibility  of  loss  to  the  plaintiffs.  It  is  plain  that 
the  plaintiffs  would  not  rely  on  White's  assurance  only,  but 
wrote  to  the  defendants  to  know  if  they  would  accept  their 
drafts.  The  credit  of  the  plaintiffs  might  have  been  hurt  by 
the  refusal  of  the  defendants  to  accept  White's  bills.  They 
were  or  might  have  been  prevented  from  resorting  to  him  or 
getting  further  security  from  him.  It  comes  within  the  cases 
of  promises  where  the  debtee  forbears  suing  the  original  debtor. 

Second  question.  Whether  by  the  law  of  merchants  this  con- 
tract is  not  binding  on  the  defendants,  though  it  was  without 
consideration. 

The  acceptance  of  a  bill  of  exchange  is  an  obligation  to  pay 
it  ;  the  end  of  their  institution,  their  currency,  requires  that  it 
should  be  so.  On  this  principle  bills  of  exchange  are  consid- 
ered and  are  declared  upon  as  special  contracts,  though  legally 
they  are  only  simple  contracts  ;  the  declaration  sets  forth  the 
bill  and  acceptance  specifically,  and  that  thereby  the  defendants 
by  the  custom  of  merchants  became  liable  to  pay  it. 

This  agreement  "  to  honor  their  bill"  was  a  virtual  accept- 
'  V.  Coggs  V,  Bernard,  2  Ld.  Raym.  gig. 


334  PILLANS  &  ROSE  V.  VAN  MIEROP  &  HOPKINS.  [CHAP.  I. 

ance  of  the  bill.  An  acceptance  needs  not  be  upon  the  bill 
itself,  it  may  be  by  collateral  writing.  Wilkinson  v.  Lutwidge, 
I  Strange,  648. 

A  promise  "  to  accept"  is  the  same  as  an  actual  acceptance  ; 
and  a  small  matter  amounts  to  an  acceptance,  and  so  says  MoUoy, 
lib.  2,  c.  10,  §  20.  And  an  acceptance  will  bind,  though  the 
acceptor  has  no  effects  of  the  drawer  in  his  hands  and  without 
any  consideration.  Symons  v-  Parminter,'  Hil.  1747,  21  G.  2, 
B.  R.  And  a  bill  accepted  for  the  honor  of  the  drawer  will 
also  bind. 

Then  he  applied  these  positions  to  the  present  case.  It  was 
an  acceptance  of  this  very  draft  by  relation  and  connection, 
though  the  bill  was  not  then  drawn  by  the  plaintiffs  on  the 
defendants. 

But  even  if  it  did  not  amount  to  an  actual  acceptance,  yet  it 
would  equally  bind  the  defendants,  they  would  be  equally 
obliged  to  perform  the  effect  of  their  undertaking. 

The  plaintiffs  apprised  the  defendants  of  their  intention  to 
draw,  and  the  defendants  promised  "  to  honor  their  draft,"  and 
the  plaintiffs  of  course  would  regulate  their  conduct  accordingly. 

Therefore  upon  the  whole  circumstances  of  this  transaction, 
first,  there  is  a  consideration,  and  secondly,  if  there  was  none, 
yet  in  this  commercial  case  the  defendants  would  be  bound. 

Aston,  J.  I  am  of  opinion  "  that  there  ought  to  be  a  new 
trial." 

If  there  be  such  a.  custom  of  merchants  as  has  been  alleged, 
it  may  be  found  by  a  jury,  but  it  is  the  Court,  not  the  jury  who 
are  to  determine  the  law. 

This  must  be  considered  as  a  commercial  transaction,  and  is 
a  plain  case.  The  defendants  have  undertaken  to  honor  the 
"  plaintiff's  draft,"  therefore  they  are  bound  to  pay  it. 

This  cannot  be  called  a  nudum  pactum.  The  answer  returned 
by  the  defendants  is  an  admission  of  "  having  effects  of  White's 
in  their  hands,"  if  that  were  necessary.  And  after  this  promise 
'*  to  accept"  (which  is  an  implied  acceptance)  they  might  have 
applied  anything  of  White's  that  they  had  in  their  hands  to  this 
engagement,  even  though  White  had  drawn  other  bills  upon 
them  in  the  interim.  The  defendants  voluntarily  engaged  to 
the  plaintiffs,  and  they  could  not  recede  from  their  engagement. 

As  to  its  being  a  ttudutn pactum  (which  matter  has  been  already 
so  well  explained)  if  there  be  turpitude  or  illegality  in  the  con- 
sideration of  a  note  it  will  make  it  void,  and   may  be  given  in 

■  This  was  on  a  motion  in  arrest  of  judgment.  The  judgment  was 
affirmed  {ex  parte)  in  dom.  proc.  with  ^100  costs  upon  or  soon  after  Feb- 
ruary 20th,  1748. 


« 


SEC.  11^.]  WILLIAMSON   AND    WIFE   V.    LUSH.  335 

evidence,  but  here  nothing  of  that  kind  appears  nor  anything 
like  fraud  in  the  phiintiffs.  Here  was  full  notice  of  all  the 
facts  ;  a  clear  apprehension  of  them  by  the  defendants  ;  a  ques- 
tion put  to  them  "  whether  they  would  accept,"  and  their  an- 
swer "  that  they  would." 

Upon  the  whole  he  concurred  "  that  an  action  will  lay  for  the 
plaintiffs  against  them,  and  that  the  plaintiffs  ought  to  recover." 

By  the  Court  unanimously.  The  rule  "  to  set  aside  the  ver- 
dict and  for  a  new  trial"  was  made  absolute. 


WILLIAMSON  AND  WIFE  v.  LOSH,  Executor. 

In  the  King's  Bench,  Michaelmas  Term,  1775. 

[Reported  in  Chitty  on  Bills,  ()tk  ed.,p.  75,  note  x.\ 

This  was  an  action  of  assuvipsit  against  the  defendant,  as  ex- 
ecutor of  John  Losh,  deceased,  upon  the  following  promissory 
note  : 

"  I,  John  Losh,  for  the  love  and  affection  that  I  have  for  Jane 
Tiflin,  my  wife's  sister's  daughter,  do  promise  that  my  execu- 
tors, administrators,  or  assigns  shall  pay  to  her  the  sum  of 
^100  of  money,  one  year  after  my  decease,  and  a  caldron  and 
a  clock,  a  wainscot  chest,  and  a  bed  and  bed-clothes,  seven 
pudden-dishes  ;  as  witness  my  hand  this  i6th  day  of  February, 
1763. 

"  Witnessed  by  us,  A.  B.,  C.  D." 

Jane  Tiffin  afterward  intermarried  with  the  plaintiff.  Upon 
the  trial  a  verdict  was  found  for  the  plaintiff,  and  a  case  re- 
served. The  defendant  admitted  he  had  proved  the  will,  and 
had  assets  sufficient  to  cover  the  damages,  but  contended  that 
there  was  no  consideration  in  point  of  law,  and  that  the  note 
could  not  be  recovered  upon,  and  that,  as  the  testator  was  not 
bound,  the  executor  was  not.  The  Court  held  that  the  instru- 
ment being  in  writing  and  attested  by  witnesses,  the  objec- 
tion of  nudum  pactum  did  not  lie,  and  ordered  Iht  postea  to  the 
plaintiff. 


336  RANN   V.    HUGHES.  [CHAP.  I. 

RANN  V.   HUGHES. 
In  the  House  of  Lords,  May  14,  1778. 

[Reported  in  7  Term  Reports  346,  note  «.] 

Rann  and  another,  executors  of  Mary  Hughes  v.  Isabella 
Hughes,  Administratrix  of  J.  Hughes  in  error  ;  Dom.  Proc. 
The  declaration  stated  that  on  June  nth,  1764,  divers  disputes 
had  arisen  between  the  plaintiffs'  testator  and  the  defendant's 
intestate,  which  they  referred  to  arbitration  ;  that  the  arbitrator 
awarded  that  the  defendant's  intestate  should  pay  to  the  plain- 
tiffs' testator  ;^983.  That  the  defendant's  intestate  afterward 
died  possessed  of  effects  sufficient  to  pay  that  sum  ;  that  admin- 
istration was  granted  to  the  defendant  ;  that  Mary  Hughes  died, 
having  appointed  the  plaintiffs  her  executors  ;  that  at  the  time 
of  her  death  the  said  sum  of  ^983  was  unpaid,  "  by  reason  of 
which  promises  the  defendant  as  administratrix  became  liable 
to  pay  to  the  plaintiffs  as  executors  the  said  sum,  and  being  so 
liable  she  in  consideration  thereof  undertook  and  promised  to 
pay,"  etc.  The  defendant  pleaded  non  assumpsit,  plene  admin- 
ist?-avit,  a.nd plene  administravit,  except  as  to  certain  goods,  etc., 
which  were  not  sufficient  to  pay  an  outstanding  bond  debt  of 
the  intestate's  therein  set  forth,  etc.  The  replication  took  issue 
on  all  these  pleas.  Verdict  for  the  plaintiff  on  the  fiist  issue, 
and  for  the  defendant  on  the  two  last  ;  and  on  the  first  a  gen- 
eral judgment  was  entered  in  B.  R.  against  the  defendant  de 
bonis  propriis.  This  judgment  was  reversed  in  the  Exchequer 
Chamber,  and  a  writ  of  error  was  afterward  brought  in  the 
House  of  Lords,  where  after  argument  the  following  question 
was  proposed  to  the  judges  by  the  Lord  Chancellor,  "  Whether 
sufficient  matter  appeared  upon  the  declaration  to  warrant  after 
verdict  the  judgment  against  the  defendant  in  error  in  her  per- 
sonal capacity,"  upon  which  the  Lord  Chief  Baron  Skynner 
delivered  the  opinion  of  the  judges  to  this  effect.  It  is  undoubt- 
edly true  that  every  man  is  by  the  law  of  nature  bound  to  fulfil 
his  engagements.  It  is  equally  true  that  the  law  of  this  country 
supplies  no  means,  nor  affords  any  remedy,  to  compel  the  per- 
formance of  an  agreement  made  without  sufficient  considera- 
tion ;  such  agreement  is  nudum  pactum  ex  quo  non  oritur  actio ; 
and  whatsoever  may  be  the  sense  of  this  maxim  in  the  civil  law, 
it  is  in  the  last-mentioned  sense  only  that  it  is  to  be  understood 
in  our  law.  The  declaration  states  that  the  defendant  being 
indebted  as  administratrix  promised  to  pay  when    requested, 


I 


SEC.  Ul>.]  RANN   v.    HUGHES.  337 

and  the  judgment  is  against  the  defendant  generally.  The; 
being  indebted  is  of  itself  a  sufficient  consideration  to  ground 
a  promise,  but  the  promise  must  be  co-extensive  with  the  con- 
sideration unless  some  particular  consideration  of  fact  can  be 
found  here  to  warrant  the  extension  of  it  against  the  defendant 
in  her  own  capacity.  If  a  person  indebted  in  one  right  in  con- 
sideration of  forbearance  for  a  particular  time  promise  to  pay 
in  another  right,  this  convenience  will  be  a  sufficient  considera- 
tion to  warrant  an  action  against  him  or  her  in  the  latter  right  ; 
but  here  no  sufficient  consideration  occurs  to  support  this  de- 
mand against  her  in  her  personal  capacity,  for  she  derives  no 
advantage  or  convenience  from  the  promise  here  made.  For  if 
I  promise  generally  to  pay  upon  request  what  I  was  liable  to 
pay  upon  request  in  another  right,  I  derive  no  advantage  or 
convenience  from  this  promise,  and  therefore  there  is  not  suffi- 
cient consideration  for  it.  But  it  is  said  that  if  this  promise  is 
in  writing  that  takes  away  the  necessity  of  consideration  and 
obviates  the  objection  of  nudum pactutu^  for  that  cannot  be  where 
the  promise  is  put  in  writing  ;  and  that  after  verdict,  if  it  were 
necessary  to  support  the  promise  that  it  should  be  in  writing, 
it  will  after  verdict  be  presumed  that  it  was  in  writing,  and  this 
last  is  certainly  true  ;  but  that  there  cannot  be  nudum  pactum  in 
writing,  whatever  may  be  the  rule  of  the  civil  law,  there  is  cer- 
tainly none  such  in  the  law  of  England.  His  Lordship  observed 
upon  the  doctrine  of  nudum  pactutn  delivered  by  Wilmot,  J.,  in 
the  case  of  Pillans  v.  Van  Mierop  and  Hopkins,  3  Burr.  1663, 
that  he  contradicted  himself,  and  was  also  contradicted  by 
Vinnius  in  his  Comment  on  Justinian. 

All  contracts  are  by  the  laws  of  England  distinguished  into 
agreements  by  specialty  and  agreements  by  parol,  nor  is  there 
any  such  third  class  as  some  of  the  counsel  have  endeavored  to 
maintain,  as  contracts  in  writing.  If  they  be  merely  written 
and  not  specialties,  they  are  parol,  and  a  consideration  must  be 
proved.  But  it  is  said  that  the  Statute  of  Frauds  has  taken 
away  the  necessity  of  any  consideration  in  this  case.  The 
Statute  of  Frauds  was  made  for  the  relief  of  personal  repre- 
sentatives and  others,  and  did  not  intend  to  charge  them  further 
than  by  common  law  they  were  chargeable.  His  Lordship 
here  read  those  sections  of  that  Statute  which  relate  to  the 
present  subject.  He  observed  that  the  words  were  merely  nega- 
tive, and  that  executois  and  administrators  should  not  be  liable 
out  of  their  own  estates,  unless  the  agreement  upon  which  the 
action  was  brought  or  some  memorandum  thereof  was  in  writ- 
ing and  signed  by  the  party.  But  this  does  not  prove  that  the 
agreement  was  still  not  liable  to  be  tried  and  judged  of  as  all 


338  SMITH   AND   smith's   CASE.  [CHAP.  I. 

other  agreements  merely  in  writing  are  by  the  common  law, 
and  does  not  prove  the  converse  of  the  proposition  that  when 
in  writing  the  party  must  be  at  all  events  liable.  He  here  ob- 
served upon  the  case  of  Pillans  v.  Van  Mierop  in  Burr.,  and  the 
case  of  Losh  v.  Williamson,  Mich.  i6  G.  3  in  B.  R.,  and  so  far 
as  these  cases  went  on  the  doctrine  of  nudum  pactum,  he  seemed  to 
intimate  that  they  were  erroneous.  He  said  that  all  his  brothers 
concurred  with  him  that  in  this  case  there  was  not  a  sufficient 
consideration  to  support  this  demand  as  a  personal  demand 
against  the  defendant,  and  that  it  being  now  supposed  to  have 
been  in  writing  makes  no  difference.  The  consequence  of 
which  is  that  the  question  put  to  us  must  be  answered  in  the 
negative. 

And  the  judgment  in  the  Exchequer  Chamber  was  affirmed. 


{c)  Surrender  of  right  as  a  consideration. 

SMITH  AND  SMITH'S   CASE. 

In  the  King's  Bench,  Michaelmas  Term,  1583. 

[Reported  m  3  Leonard  88.] 

Lambert  Smith,  executor  of  Thomas  Smith,  brought  an  action 
upon  the  case  against  John  Smith,  that  whereas  the  testator 
having  divers  children  infants,  and  lying  sick  of  a  mortal  sick- 
ness, being  careful  to  provide  for  his  said  children  infants  ;  the 
defendant  in  consideration  the  testator  would  commit  the  edu- 
cation of  his  children,  and  the  disposition  of  his  goods  after  his 
death  during  the  minority  of  his  said  children,  for  the  education 
of  the  said  children  to  him,  promised  to  the  testator  to  procure 
the  assurance  of  certain  customary  lands  to  one  of  the  children 
of  the  said  testator  ;  and  declared  further  that  the  testator 
thereupon  constituted  the  defendant  overseer  of  his  will,  and 
ordained  and  appointed  by  his  will  that  his  goods  should  be  in 
the  disposition  of  the  defendant,  and  that  the  testator  died,  and 
that  by  reason  of  that  will  the  goods  of  the  testator  to  such  a 
value  came  to  the  defendant's  hands  to  his  great  profit  and 
advantage.  And  upon  fion  assumpsit  pleaded,  it  was  found  for 
the  plaintiff  ;  and  upon  exception  to  the  declaration  in  arrest  of 
judgment  for  want  of  sufficient  consideration   it  was  said  by 


M 


SEC.  11^.]  fuller's  case.  339 

Wray,  C.J.,  that  here  is  not  any  benefit  to  the  defendant  that 
should  be  a  consideration  in  law  to  induce  him  to  make  this 
promise,  for  the  consideration  is  no  other  but  to  have  the  dis- 
position of  the  goods  of  the  testator  pro  educatione  liberorum  ; 
for  all  the  disposition  is  for  the  profit  of  the  children,  and  not- 
withstanding that  such  overseers  commonly  make  gain  of  such 
disposition,  yet  the  same  is  against  the  intendment  of  the  law, 
which  presumes  every  man  to  be  true  and  faithful  if  the  con- 
trary be  not  showed  ;  and  therefore  the  law  shall  intend  that 
the  defendant  hath  not  made  any  private  gain  to  himself,  but 
that  he  hath  disposed  of  the  goods  of  the  testator  to  the  use 
and  benefit  of  his  children  according  to  the  trust  reposed  in 
him.  Which  Ayliffe,  J.,  granted.  Gawdy,  J.,  was  of  the  con- 
trary opinion.  And  afterward  by  award  of  the  Court  it  was 
that  the  plaintiff  nihil  capiat  per  billam.^ 


FULLER'S   CASE. 


In  the  Common   Pleas,   Michaelmas  Term,  1586. 
[Reported  in  Godbolt  94.] 

A.  PROMISES  unto  the  eldest  son  that  if  he  will  give  his  consent 
that  his  father  shall  make  an  assurance  unto  him  of  his  lands, 
that  he  will  give  him  ^10.  If  he  give  his  assent,  although  no 
assurance  be  made,  yet  he  shall  maintain  an  action  upon  the 
promise.  But  at  another  day  Periam,  J.,  said  that  in  that  case 
the  son  ought  to  promise  to  give  his  assent,  or  otherwise  A.  had 
nothing  if  his  son  would  not  give  his  consent.  And  so  where 
each  hath  remedy  against  the  other  it  is  a  good  consideration. 
In  Hillary  Term  after  Fenner  spake  in  arrest  of  judgment  upon 
the  special  verdict,  that  because  that  the  assumpsit  is  but  of  one 
part,  and  the  other  is  at  liberty,  whether  he  will  give  his  con- 
sent or  not  ;  that  therefore  although  that  he  do  consent  that  he 
shall  not  recover  the  ;^  10.  Also  he  said  that  the  promise  was 
that  if  he  would  give  consent  that  his  father  should  make  assur- 
ance to  him,  and  here  the  assurance  is  made  to  A.  to  the  use  of 
the  defendant  and  his  wife  in  tail,  so  as  it  varies  from  the  first 

'  One  of  the  most  striking  differences  between  debt  and  assumpsit  in 
respect  of  consideration  is,  that  in  debt  the  consideration  must  mure  to  the 
benefit  of  the  debtor,  while  in  assumpsit  it  may  inure  to  the  benefit  of  the 
promisor,  or  of  some  third  person,  or  to  the  benefit  of  no  one.  It  was  only 
by  degrees,  however,  that  this  difference  between  debt  and  assumpsit  was 
developed.— Lancjdell,  Summary  of  the  Law  of  Contracts,  80. — Ed. 


I 


340  SIR  ANTHONY   STURLYN   V.   ALBANY.  [cHAP.  I. 

communication  and  also  it  is  in  tail.  Shuttleworth  contrary  ; 
inasmuch  as  he  hath  performed  it  by  the  giving  of  consent,  then 
when  he  hath  performed.  It  is  not  to  the  purpose  that  he  was 
not  tied  by  a  cross  assumpsit  to  do  it,  but  if  he  had  not  given 
his  consent  he  should  have  nothing.  At  length  judgment  was 
given  for  the  plaintiff.  And  Periam,  J.,  said  in  this  case  that 
if  a  covenant  be  to  make  an  estate  to  A.  and  it  is  made  to  B.  to 
the  use  of  A.  that  he  doubted  whether  that  were  good  or  not. 


SIR   ANTHONY   STURLYN  v.  ALBANY. 

In  the  Queen's  Bench,  Michaelmas  Term,  1587. 

[Reported  in  Croke,  Elizabeth,  67] 

Assumpsit.  The  case  was,  the  plaintiff  had  made  a  lease  to 
J.  S.  of  land  for  life  rendering  rent.  J.  S.  grants  all  his  estate 
to  the  defendant  ;  the  rent  was  behind  for  divers  years  ;  the 
plaintiff  demands  the  rent  of  the  defendant,  who  assumed  that 
if  the  plaintiff  could  show  to  him  a  deed  that  the  rent  was  due, 
that  he  would  pay  to  him  the  rent  and  the  arrearages  ;  the  plain- 
tiff alleged  that  upon  such  a  day  of,  etc.,  at  Warwick,  he  showed 
unto  him  the  indenture  of  lease,  by  which  the  rent  was  due,  and 
notwithstanding  he  had  not  paid  him  the  rent  and  the  arrear- 
ages due  for  four  years.  Upon  ?ion  assumpsit  pleaded  it  was 
found  for  the  plaintiff,  and  damages  assessed  to  so  much  as  the 
rent  and  arrearages  did  amount  unto.  And  it  was  moved  in 
arrest  of  judgment,  that  there  was  no  consideration  to  ground 
an  action,  for  it  is  but  the  showing  of  the  deed,  which  is  no 
consideration.  2.  The  damages  ought  only  to  be  assessed  for 
the  time  the  rent  was  behind,  and  not  for  the  rent  and  the  arrear- 
ages, for  he  hath  other  remedy  for  the  rent  ;  and  a  recovery  in 
this  action  shall  be  no  bar  in  another  action.  But  it  was  ad- 
judged for  the  plaintiff,  for  when  a  thing  is  to  be  done  by  the 
plaintiff,  be  it  never  so  small,  this  is  a  sufficient  consideration 
to  ground  an  action,  and  here  the  showing  of  the  deed  is  a 
cause  to  avoid  suit,'  and  the  rent  and  arrearages  may  be  assessed 

'  It  appears  to  me  that  it  has  not  been  always  sufficiently  borne  in  mind 
that  the  same  thing  may  be  a  consideration  or  not,  as  it  is  dealt  with  by  the 
parties.  .  .  . 

...  It  is  hard  to  see  the  propriety  of  erecting  any  detriment  which  an  in- 
strument may  disclose  or  provide  for  into  a  consideration,  unless  the  parties 


SEC.  11^.]  PICKAS   V.    GUILE.  34I 

all  in  damages  ;  but  they  took  order  that  the  plaintiff  should  re- 
lease to  the  defendant  all  the  arrearages  of  rent  before  execution 
should  be  awarded.  Nota.  In  this  case  it  was  alleged  that  it 
hath  been  adjudged,  when  one  assumeth  to  another,  that  if  he 
c^n  show  him  an  obligation  in  which  he  was  bound  to  him,  that 
he  would  pay  him,  and  he  did  show  the  obligation,  etc.,  that 
no  action  lieth  upon  this  assttmpsit ;  which  was  affirmed  by  the 
justices.' 


PICKAS  V.  GUILE. 

In  the  King's  Bench,  Trinity  Term,  1608. 

{Reported  in  Yelverton  128.] 

The  plaintiff  declared  that  the  defendant  in  consideration  the 
plaintiff  adtiinc  ed  ibidem  at  the  defendant's  request  deliheravit  to 
the  defendant  four  broad  cloths,  and  two  packs  and  a  half  of 
wool  of  the  plaintiff's  to  the  value  ^50  promised  the  same  broad 
cloths  and  packs  of  wool  to  the  plaintiff  upon  request  to  re- 
deliver. The  plaintiff  said  in  facto  that  he  did  deliver  them  to 
the  defendant,  yet  the  defendant  had  not,  although  he  was  such 
a  day,  etc.,  requested,  redelivered  them,  and  on  non  assumpsit 
pleaded,  it  was  found  for  the  plaintiff  ;  and  Yelverton  showed 
in  arrest  of  judgment  that  there  is  no  consideration  laid  in  the 
declaration  to  draw  a  promise  from  the  defendant,  for  the 
defendant  had  no  benefit  by  the  cloths,  etc.,  but  nudam  custod. 
which  is  rather  a  charge  than  a  benefit  ;  for  the  defendant  could 
not  use  them,  and  therefore  it  is  to  be  resembled  to  9  E.  4, 
where  delivery  of  the  evidences  to  the  true  owner  is  no  consid- 
eration, for  the  owner  ought  to  have  them  of  common  right. 
Quod  fuit  concessum  per  totam  curiam.  And  nil  capiat  per  billam 
entered. 

have  dealt  with  it  on  that  footing.  In  many  cases  a  promisee  may  incur  a 
detriment  without  thereby  furnishing  a  consideration.  The  detriment  may 
be  nothing  but  a  condition  precedent  to  the  performance  of  the  promise,  as 
where  a  man  promises  to  pay  another  $500  if  he  breaks  his  leg.  Byles,  J., 
in  Shadwell  v.  Shadwell,  30  L.  J.  C.  P.  145,  149.  The  courts,  however, 
have  gone  far  toward  obliterating  this  distinction. — Holmes,  The  Common 
Law,  292. — Ed. 

'  It  was  agreed  by  all  the  justices  that  if  one  be  bound  in  an  obligation, 
and  afterward  promise  to  pay  the  money,  assianpsit  Heth  upon  this  jjrom- 
ise  ;  and  if  he  recover  all  in  damages,  this  shall  be  a  bar  in  debt  upon  the 
obligation.     Ashbrooke  v.  Snape,  i  Cro.  Eliz.  240. — Ed. 


342  HAWES   V.    SMITH.  [CHAP.  I. 

WHEATLEY  v.  LOW. 

In  the  King's  Bench,  Hilary  Term,  1623. 

[Reported  in  Croke,  James,  668  ] 

Action  on  the  case.  Whereas  he  was  obliged  to  J.  S.  in  jQ/\.o 
for  the  payment  of  ^20,  and  the  bond  being  forfeited,  he  de- 
livered ;^io  to  the  defendant  to  the  intent  he  should  pay  it  to 
J.  S.  in  part  of  payment  sine  ulld  mora  ;  that  in  consideratione  inde 
the  defendant  assumed,  etc.,  and  assigns  for  breach,  that  he  had 
not  paid,  whereupon  the  other  had  sued  him  for  this  debt,  etc. 

The  defendant  pleaded  7ion  assumpsit,  and  verdict  for  the 
plaintiff. 

It  was  moved  in  arrest  of  judgment  that  this  is  not  any  con- 
sideration, because  it  is  not  alleged  that  he  delivered  it  to  the 
defendant  upon  his  request,  and  the  acceptance  of  it  to  deliver 
to  another  sine  mora  cannot  be  any  benefit  to  the  defendant  to 
charge  him  with  this  promise. 

Sed  non  allocatur,  for  being  that  he  accepted  this  money  to 
deliver,  and  promised  to  deliver  it,  it  is  a  good  consideration  to 
charge  him.  Wherefore  it  was  adjudged  for  the  plaintiff.  A 
writ  of  error  being  brought,  and  this  matter  only  assigned  for 
error,  the  judgment  was  affirmed. 


HAWES  V.  SMITH. 

In  the  King's  Bench,  Hillary  Term,  1675. 

[Reported  in  2  Levinz  122.] 

Error  of  a  judgment  in  assutnpsit  in  com.  banco  against  the 
defendant,  an  executor,  wherein  the  plaintiff  declared  that 
whereas  the  testator  was  indebted  to  him,  the  defendant  assumed 
in  consideration  the  plaintiff  at  his  request  had  accounted  with 
him,  and  was  found  so  much  in  arrear,  to  pay  it.  The  plaintiff 
had  judgment  in  com.  banco  de  bonis propriis  of  the  executor,  and 
this  was  assigned  for  error,  but  overruled  as  no  error,  for  the 
plaintiff  was  not  bound  to  account  with  the  executor,  and  yet 
he  did  account  at  the  request  of  the  executor.  Et  per  Hale, 
though  a  bare  account  will  not  oblige  an  executor  to  pay  de  bonis 
propriis.,   yet  a   promise  in  consideration  of   forbearance   will  ; 


SEC.  11^.]  WILLIAMSON   V.    CLEMENTS.  343 

and  the  case  is  all  one,  for  it  must  be  intended  that  an  express 
request  was  made  to  account,  and  thereupon  an  express  promise 
to  pay,  otherwise  the  evidence  would  not  support  the  declara- 
tion ;  whereupon  judgment  was  affirmed /^'r  toiam  curiam. 


WILLIAMSON  V.  CLEMENTS. 

In  the  Common  Pleas,  April  25,  1809. 

[^Reported  in  i  Tauttton  523.] 

The  plaintiff  declared  that  the  defendant  was  indebted  to 
him  in  ;^39  15^-.  2d.  by  virtue  of  a  bill  of  exchange  drawn  by 
the  defendant,  payable  to  his  own  order,  and  indorsed  to  the 
plaintiff,  but  which  bill  the  plaintiff  was  then  unable  to  produce 
or  deliver  up  to  the  defendant  ;  and  thereupon,  in  consideration 
of  the  premises,  and  that  the  plaintiff  at  the  defendant's  request 
liad  executed  to  him  a  bond,  conditioned  for  indemnifying  the 
defendant  against  his  afterward  being  compelled  to  pay  the  said 
sum  of  money,  and  purporting  to  acknowledge  its  having  been 
paid  by  the  defendant  to  the  plaintiff  (although  the  same  had 
not  been  actually  so  paid),  the  defendant  undertook  to  pay  the 
plaintiff  the  said  sum  of  money  upon  request.  After  verdict 
for  the  plaintiff  upon  this  count,  Best  had  obtained  a  rule  nisi 
for  arresting  the  judgment,  on  the  ground  that  no  consideration 
was  stated  for  the  defendant's  promise. 

Shepherd  now  showed  cause.  The  plaintiff  has  by  this  bond 
given  the  defendant  a  complete  acquittance  and  discharge  for 
his  bill,  for  he  has  not  only  estopped  himself  from  ever  bringing 
any  action  upon  the  bill  which  was  lost,  so  that  the  bill,  as 
between  them,  is  gone,  and  he  could  recover  the  sum  due  only 
upon  the  defendant's  promise  ;  but  also,  if  a  third  person  had 
recovered  against  the  defendant  on  the  bill,  the  plaintiff  on  this 
bond  would  be  bound  to  repay  him.  It  is  a  detriment  to  the 
plaintiff  to  relinquish  his  remedy  on  the  bill,  and  the  subjecting 
himself  to  a  detriment  at  the  defendant's  request  is  a  sufficient 
consideration  ;  it  is  not  necessary  that  any  benefit  should  result 
to  the  defendant.  By  the  St.  9  &  10  W.  3,  c.  17,  §  3  upon  the 
loss  of  this  bill  the  defendant  was  bound  to  give  the  plaintiff 
another  of  the  same  tenor,  taking  an  indemnity  against  the 
former  ;  and  the  plaintiff  in  fact  accepts  this  promise  in  lieu  of 
another  bill,  though  he  has  not  so  stated  it  in  his  count.  In 
I  Ro.  Ab.  22,  pi.  21   it  was  held  that  the  giving  up  the  posses- 


344  WILLIAMSON   V.    CLEMENTS.  [CHAP.  I. 

sion  of  bills  of  exchange  was  a  good  consideration,  though  they 
were  given  up  at  the  request  of  one  who  was  a  stranger  to  the 
bills,  and  could  never  avail  himself  of  them  ;  because  it  was  a 
detriment  to  the  plaintiff  to  part  with  them.  So  in  an  anony- 
mous case,  I  Sid.  31  a  son  promised  J.  S.  in  consideration  that 
he  would  deliver  up  the  bond  of  his  deceased  father,  and  make 
him,  the  son,  a  discharge  of  the  debt,  he  would  pay  him;2£"ioo  ; 
and  it  was  objected  that  it  did  not  appear  that  the  son  was 
liable  to  this  debt  ;  but  it  was  answered  that  it  should  be  in- 
tended that  the  discharge  was  made  to  the  party  entitled  to  it, 
and  so  a  good  consideration  ;  but  at  all  events  it  was  a  detriment 
to  the  plaintiff  to  deliver  up  the  bond. 

Best,  contra.  The  plaintiff  has  all  the  advantage  in  this  trans- 
action, and  the  defendant  none.  It  is  sufficient  for  the  defend- 
ant that  it  does  not  appear  on  this  count  that  he  was  ever  liable 
to  pay  this  bill.  By  law  a  drawer  is  discharged  if  he  has  not 
notice  of  the  dishonor  of  a  bill,  and  no  notice  is  here  averred. 
It  does  not  appear  on  this  count  but  that  the  plaintiff  might 
have  negotiated  the  bill.  The  defendant  could  in  no  case  have 
been  liable  for  more  than  the  amount  of  the  bill  ;  to  that  extent 
he  is  still  liable,  therefore  he  is  not  benefited.  In  the  case  cited 
the  bills  were  delivered  at  the  defendant's  request  ;  the  nature 
of  this  transaction  proves  that  this  contract  was  entered  into  at 
the  instance  of  the  plaintiff,  for  it  is  in  no  respect  either  bene- 
ficial to  the  defendant  or  prejudicial  to  the  plaintiff,  for  whose 
convenience  only  it  took  place. 

Mansfield,  G.J.  The  count  states  that  before  and  at  the 
time  of  the  promises  the  defendant  was  indebted  to  the  plaintiff  ; 
that  fact,  therefore,  must  have  been  proved  at  the  trial  ;  but  if 
he  had  been  discharged  for  want  of  notice  of  the  bill's  dishonor, 
or  if  the  plaintiff  had  negotiated  the  bill,  the  defendant  could 
not  have  been  found  then  indebted  to  the  plaintiff.  It  therefore 
must  be  taken  that  he  was  bound  in  law  to  pay  the  bill.  The 
count  then  states  that  in  consideration  that  the  plaintiff,  being 
unable  to  deliver  up  the  bill,  had  given  a  bond  of  indemnity 
and  discharge,  the  defendant  promised  to  pay.  What  then  is 
it  more  or  less  than  this  :  The  defendant  was  indebted  to  the 
plaintiff  on  a  bill  of  exchange,  which  was  not  then  negotiated  ; 
the  time  of  payment  was  arrived,  for  the  money  is  stated  to  be 
then  due.  The  bill  could  not  afterward  pass  into  other  hands 
with  better  rights  than  the  plaintiff  had  ;  it  must  pass  subject  to 
all  the  equities  which  the  defendant  had  on  it.  The  agreement 
is  entirely  to  discharge  the  defendant  from  payment  of  the  bill 
on  his  engaging  in  a  different  way  to  pay  the  money  therein 
mentioned.     Is  not  this  a  sufficient  consideration  ? 


SEC.  uc]  BROOKS   V.    BALL.  345 

Heath,  J.,  concurred. 

Lawrence,  J.  The  argument  goes  on  a  supposition  wiiich 
the  count  does  not  warrant  ;  that  all  is  done  at  the  instance  of 
the  plaintiff  ;  now  the  count  states  that  the  request  comes  from 
the  defendant.  I  will  give  the  defendant  credit  to  suppose  him 
an  honest  man,  and  that  being  told  the  bill  is  lost,  he  had  said, 
"  Give  me  a  bond  of  indemnity,  and  I  will  give  you  another  bill." 
This  is  just  as  natural  as  if  the  plaintiff  had  found  him  unwilling 
to  do  this  and  had  requested  it.  It  is  a  disadvantage  to  the 
plaintiff  to  execute  the  bond  if  it  is  no  advantage  to  the  defend- 
ant.    There    is    a    case    in    i    Sid.  57,  Traver   v.  ,  where    a 

woman,  after  the  decease  of  her  husband,  promised  a  creditor 
that  if  he  would  prove  her  husband  had  owed  him  ^20,  she 
would  pay  it  ;  and  it  was  held  a  good  consideration,  because  it 
was  trouble  and  charge  to  the  creditor  to  prove  his  debt. 

Chambre,  J.,  concurring. 

The  rule  was  discharsred. 


BROOKS  V.  BALL. 

In  the  Supreme  Court  of  New  York,  October  Term,    1820. 

\^Reported  in  \%  Johnson  337.] 

In  error,  to  the  Court  of  Common  Pleas  of  Orange  County. 
Ball  brought  an  action  of  assumpsit  against  Brooks,  in  the  Court 
below.  The  declaration  contained  a  special  count,  stating  that 
the  plaintiff  claimed  of  the  defendant  the  sum  of  $100,  which 
the  defendant  denied  that  he  owed  to  the  plaintiff,  but  promised 
that  if  the  plaintiff  would  make  oath  to  the  correctness  of  his 
claim,  he,  the  defendant,  would  pay  the  amount  thereof  ;  and 
averred  that  the  plaintiff  did  make  oath  to  the  truth  and  cor- 
rectness of  his  claim,  but  that  the  defendant,  notwithstanding 
his  promise,  refused  to  pay  the  $100,  etc.  The  declaration  also 
contained  the  common  money  counts.  The  defendant  pleaded 
the  general  issue. 

After  the  plaintiff's  counsel  had  stated  his  case,  the  defend- 
ant's counsel  insisted  that  admitting  the  facts  stated  to  be 
proved,  they  were  not  sufficient  to  support  the  action,  because 
the  promise  of  the  defendant  was  without  consideration  and 
void,  and  the  plaintiff  could  not  lawfully  support  his  claim  on 
his  own  affidavit.  He,  therefore,  moved  that  the  plaintiff 
should   be   nonsuited,  but   the  objection   was  overruled   by  the 


346  BROOKS   V.    BALL.  [CHAP.  I. 

Court.  The  plaintiff  then  went  into  the  evidence  in  support 
of  his  case.  It  was  proved  that  the  defendant  made  the  promise 
alleged  ;  that  the  plaintiff  had  made  the  affidavit  and  demanded 
payment  of  the  $100  ;  and  that  the  defendant  had  admitted  his 
liability  to  pay  the  money,  and  intended  to  pay,  but  was  advised 
to  the  contrary. 

The  defendant's  counsel  then  offered  to  prove  that  the 
plaintiff,  in  his  affidavit,  had  sworn  falsely,  or  was  grossly  mis- 
taken. This  evidence  was  objected  to  and  overruled  by  the 
Court.  And  the  counsel  for  the  defendant  tendered  a  bill  of 
exceptions.  The  jury,  under  the  direction  of  the  Court,  found 
a  verdict  for  the  plaintiff  for  $110.50. 

IVisner  for  the  plaintiff  in  error.  This  case  is  distinguishable 
from  the  cases  which  are  to  be  found  in  the  books.  They  will 
be  found  to  be  cases  where  the  defendant  promised  to  pay  a 
precedent  debt,  if  the  plaintiff  would  prove  it  by  a  third  person. 
Here  the  debt  was  to  be  created  by  the  promise  to  pay,  on  the 
oath  of  the  plaintiff  himself.  It  is  against  the  fundamental 
principle  of  law  that  a  party  should  be  a  judge  in  his  own 
cause  or  give  evidence  in  his  own  favor. 

If  such  a  promise  can  be  a  foundation  for  an  action,  it  is  at 
most  prima  facie  evidence,  and  may  be  rebutted  by  showing  that 
the  plaintiff  swore  falsely  or  was  mistaken.  (2  Comyn  on  Con- 
tracts, 449,  450.) 

Betts,  contra.  In  Knight  v.  Rushwood  (Cro.  Eliz.  469)  the 
defendant  promised  that  if  the  plaintiff  and  two  witnesses  would 
depose  before  the  Mayor  of  Lincoln,  as  to  a  bond  of  a  third 
person,  the  defendant  would  pay  it.  Bretton  v.  Prettiman 
(T.  Raym.  153)  is  precisely  in  point  to  show  that  this  action 
may  be  maintained.  The  defendant  promised  that  in  consider- 
ation that  the  plaintiff  would  take  an  oath  that  money  was  due 
to  him.  he  would  pay  it  ;  and  the  plaintiff  took  an  oath  before 
a  master  in  chancery,  and  brought  assumpsit  for  the  money  and 
recovered.  (S.  C.  i  Sid.  283  ;  2  Keble,  44.)  In  Stevens  v. 
Thacker  (Peake's  N.  P.  Cases,  187,  188)  the  holder  of  a  bill  of 
exchange  promised  not  to  sue  the  acceptor  if  he  would  make 
affidavit  that  the  acceptance  was  a  forgery.  The  affidavit  was 
drawn,  but  the  defendant  did  not  swear  to  it.  Lord  Kenyon 
said  that  if  the  defendant  had  sworn  to  the  affidavit  he  should 
have  held  that  he  had  discharged  himself  from  the  action, 
though  the  affidavit  had  been  false  (i  Mod.  166  ;  Lloyd  v. 
Willan  ;  i  Esp.  N.  P.  Cases,  178,  179  ;  Delesline  v.  Greenland, 
I  Bay's  S.  C.  Rep.  458,  S.  P.)  One  promise  is  a  sufficient  con- 
siderati'  n  for  another  promise.     (8  Johns.  Rep.  306.) 

Spencer,    C.J.,    delivered    the    opinion    of    the    Court.     The 


m 


SEC.  UC]  BROOKS   7'.    BALL.  34/ 

principal  question  presented  by  this  case  is,  whether  a  promise 
to  pay  a  sum  claimed  to  be  due  by  one  party  and  denied  by  the 
other,  if  the  party  claiming  would  swear  to  the  correctness  of 
the  claim,  and  he  does  so  swear,  is  a  valid  promise.  Another 
question  was  made  on  the  trial,  whether  it  was  competent  to 
the  defendant  below  to  prove  that  the  plaintiff  below  either 
swore  falsely  or  was  grossly  mistaken  in  the  affidavit  which  he 
made. 

It  has  been  frequently  decided  that  a  promise  to  pay  money, 
in  consideration  that  the  plaintiff  would  take  an  oath  that  it 
was  due,  was  a  valid  and  binding  promise.  Thus  in  Bretton  v. 
Prettiman  (T.  Raym.  153)  the  plaintiff  declared  that  the 
defendant  promised,  in  consideration  that  the  plaintiff  would 
take  an  oath  that  money  was  due  to  him,  he  would  pay  him, 
and  the  plaintiff  averred  that  he  swore  before  a  master  in 
chancery.  On  demurrer  it  was  adjudged  for  the  plaintiff,  and, 
as  the  reporter  states,  because  it  was  not  such  an  oath  for 
which  he  may  be  indicted.  In  Anin  &  Andrews  (i  Mod.  166) 
there  was  a  promise  to  pay,  if  the  plaintiff  would  bring  two 
witnesses  before  a  justice  of  the  peace,  who  should  depose  that 
the  defendant's  father  was  indebted  to  the  plaintiff  ;  and  two 
judges  against  one  thought  it  not  a  profane  oath,  because  it 
tended  to  the  determining  a  controversy,  and  the  plaintiff  had 
judgment.  This  case  occurred  before  the  Statute  of  Frauds  ; 
the  promise  would  now  be  holden  to  be  void  unless  in  writing, 
it  being  to  pay  the  debt  of  a  third  person.  The  case  of 
Bretton  v.  Prettiman  is  differently  stated  in  i  Sid.  283  and  2 
Keb.  26,  44.  It  is  there  stated  to  be  a  promise  to  pay,  if  the 
plaintiff  would  procure  a  third  person  to  make  oath  that  the 
money  was  due.  But  this  makes  no  difference  in  principle,  for 
in  either  case  the  oath  was  extra-judicial. 

In  Stevens  and  Others  v.  Thacker  (Peake's  N.  P.  Rep.  187) 
the  defendant  was  sued  as  the  acceptor  of  a  bill,  and  alleged  it 
to  be  a  forgery,  and  offered  to  make  affidavit  that  he  never  had 
accepted  it.  The  plaintiff  agreed  not  to  sue  the"  defendant  if 
he  would  make  the  affidavit.  The  affidavit  was  drawn,  but  not 
sworn  to.  Lord  Kenyon  said  that  had  the  defendant  sworn  to 
the  affidavit,  he  should  have  held  that  he  had  discharged  him- 
self, though  the  affidavit  had  been  false  ;  for  the  plaintiffs  who 
had  agreed  to  accept  that  affidavit,  as  evidence  of  the  fact, 
should  not,  after  having  induced  the  defendant  to  commit  the 
crime  of  perjury  maintain  an  action  on  the  bill.  In  Lloyd  ?'. 
Willan  (i  Esp.  Rep.  178)  the  defendant's  attorney  proposed  to 
the  plaintiff's  attorney  that  the  defendant  should  pay  the 
demand,  if  the  plaintiff's  porter  would  make  an  affidavit  that 


348  WILKINSON   V.    OLIVEIRA.  [cHAP.  I. 

he  had  delivered  the  goods  in  question  to  the  defendant.  The 
aflfidavit  was  made,  and  Lord  Kenyon  held  it  to  be  conclusive, 
and  that  the  defendant  was  precluded  from  going  into  any 
defence  in  the  case. 

These  cases,  which  stand  uncontradicted,  abundantly  show 
that  such  a  promise  as  the  present  is  good  in  point  of  law,  and 
that  the  making  the  proof  or  affidavit,  whether  by  a  third 
person  or  by  the  party  himself,  is  a  sufficient  consideration  for 
the  promise.  It  is  not  making  a  man  a  judge  in  his  own  cause, 
but  it  is  referring  a  disputed  fact  to  the  conscience  of  the  party. 
It  is  begging  the  question  to  suppose  that  it  will  lead  to  per- 
jury. If  the  promise  is  binding,  because  the  making  the  proof 
or  affidavit  is  a  consideration  for  it,  the  defendant  must  neces- 
sarily be  precluded  from  gainsaying  the  fact.  He  voluntarily 
waives  all  other  proof  ;  and  to  allow  him  to  draw  in  question 
the  verity  or  correctness  of  the  proof  or  affidavit  would  be 
allowing  him  to  alter  the  conditions  of  his  engagement  and 
virtually  to  rescind  his  promise. 

Judgment  affirmed. 


WILKINSON  V.  OLIVEIRA. 

In  the  Common  Pleas,  January  27,  1835. 

\^Reported  in  i  Bingham,  New  Cases,  490.J 

The  declaration  stated  that  divers  disputes  and  controversies 
had  arisen  between  the  defendant  and  divers  other  persons,  re- 
specting the  disposition  of  the  estate  and  effects  of  one  Dominick 
Oliveira,  then  late  deceased,  and  the  right  of  the  defendant  to 
the  possession  of  any  and  what  part  thereof  ;  in  which  disputes 
and  controversies  it  became  and  was  necessary,  for  the  termina- 
tion thereof  in  favor  of  the  defendant,  that  the  defendant  should 
prove  that  the  said  Dominick  Oliveira  was,  at  the  time  he  made 
his  will,  and  at  the  time  of  his  death,  an  alien,  and  a  native  of 
Portugal  ;  that  the  plaintiff  was  lawfully  possessed  of  a  certain 
writing  and  paper,  being  a  letter  written  by  the  said  Dominick 
Oliveira,  in  his  lifetime,  to  the  plaintiff,  which  said  letter 
showed,  declared,  and  proved  that  the  said  Dominick  Oliveira 
was,  at  the  time  he  made  his  will,  and  at  the  time  of  his  death, 
an  alien  and  a  native  of  Portugal  ;  that  the  plaintiff,  at  the  re- 
quest of  the  defendant,  gave  to  the  defendant  the  said  letter,  to 
be  used  and  employed  by  the  defendant  for  the  purpose  of  prov- 
ing that  the  said  Dominick  Oliveira  was  such  alien  and  native 


I 


SEC.  nc]  WILKINSON   V.    OLIVEIRA.  349 

of  Portugal  at  the  time  he  made  his  will  and  at  the  time  of  his 
death  ;  that  the  defendant  used  and  employed  the  said  letter 
for  the  said  purpose  ;  and  that,  by  means  of  the  said  letter  and 
of  the  matters  therein  contained,  the  defendant  was  enabled  to, 
and  did  cause  the  said  disputes  and  controversies  to  be  deter- 
mined in  favor  of  him,  the  defendant,  and  did,  by  means  of  the 
said  letter  and  of  the  matters  therein  contained,  become  law- 
fully possessed  of  and  acquired  a  large  portion  of  the  estate  and 
effects  of  the  said  Dominick  Oliveira,  of  great  value,  to  wit,  of 
the  value  of  ^100,000,  etc.  And  thereupon,  to  wit,  on,  etc., 
at,  etc.,  in  consideration  thereof,  and  that  the  plaintiff,  at  the 
special  instance  and  request  of  the  defendant,  had  then  and  there 
given  the  said  letter  to  the  defendant,  the  defendant  then  and 
there  undertook  and  faithfully  promised  the  plaintiff  to  give  him, 
the  plaintiff,  a  certain  sum  of  money,  to  wit,  the  sum  of  ;^iooo. 

Breach — refusal  to  give  the  ;^iooo  in  conformity  with  the 
promise. 

Plea,  that  the  defendant  was  not  by  means  of  the  letter  en- 
abled to,  and  did  not  by  means  thereof  cause  the  said  disputes 
to  be  determined  in  favor  of  the  defendant,  and  that  the  defend- 
ant did  not,  by  means  of  the  letter,  become  possessed  of  a  por- 
tion of  the  estate  of  Dominick  Oliveira  of  the  value  of  ^100,000. 

Demurrer — for  putting  in  issue  matter  not  properly  issuable, 
and  for  not  denying  or  confessing  and  avoiding  the  breach  of 
promise.     Joinder. 

Kelly^  for  the  plaintiff,  was  called  upon  by  the  Court  to  sup- 
port the  declaration.  The  consideration,  though  past,  is  alleged 
to  have  arisen  at  the  defendant's  request,  which  renders  it  suffi- 
cient to  impart  validity  to  the  defendant's  promise  ;  and  though 
the  letter  in  question  is  alleged  to  have  been  giveti  to  the  de- 
fendant, the  statement  amounts  to  this,  that,  in  consideration 
that  the  plaintiff  had  put  the  defendant  in  possession  of  a  docu- 
ment by  which  the  defendant  was  enabled  to  recover  ^100,000, 
the  defendant  undertook  to  give  the  plaintiff  in  return  ^1000. 
For  such  an  undertaking  the  delivery  of  the  document  was 
ample  consideration. 

Talfourd,  contra,  contended  that,  taking  the  whole  declaration 
together,  it  appeared  plainly  the  letter  had  been  handed  to  the 
defendant  by  way  of  a  spontaneous  gift,  and  such  a  gift  was 
no  consideration  for  a  promise  to  pay. 

TiNDAL,  C.J.  What  would  you  say  to  the  case  of  a  man  who, 
entering  a  shop,  should  say,  I'll  give  ^10  for  such  an  arti- 
cle. Here  the  word  give  is  used  on  both  sides.  It  is  a  gift  upon 
a  mutual  consideration. 

Per  Curiam.     There  must  be  judgment  for  the  plaintiff. 


350  BAINBRIDGE   V.    FIRMSTONE.  [cHAP.  I. 

BAINBRIDGE  v.  FIRMSTONE. 

In  the  Queen's  Bench,  November  2,  1838. 
[Reported  in  8  Adolphus  &^  Ellis  743.] 

Assumpsit.  The  declaration  stated  that,  whereas  heretofore, 
to  wit,  etc.,  in  consideration  that  plaintiff,  at  the  request  of  de- 
fendant, had  then  consented  to  allow  defendant  to  weigh  divers, 
to  wit,  two,  boilers,  of  the  plaintiff,  of  great  value,  etc.,  defend- 
ant promised  that  he  would,  within  a  reasonable  time  after  the 
said  weighing  was  effected,  leave  and  give  up  the  boilers  in  as 
perfect  and  complete  a  condition  and  as  fit  for  use  by  plaintiff 
as  the  same  were  in  at  the  time  of  the  consent  so  given  by  plain- 
tiff ;  and  that,  although  in  pursuance  of  the  consent  so  given, 
defendant,  to  wit,  on,  etc.,  did  weigh  the  same  boilers,  yet  de- 
fendant did  not  nor  would,  within  a  reasonable  time  after  the 
said  weighing  was  effected,  leave  and  give  up  the  boilers  in  as 
perfect,  etc.,  but  wholly  neglected  and  refused  so  to  do,  although 
a  reasonable  time  for  that  purpose  had  elapsed  before  the  com- 
mencement of  this  suit  ;  and,  on  the  contrary  thereof,  defendant 
afterward,  to  wit,  on,  etc.,  took  the  said  boilers  to  pieces,  and 
did  not  put  the  same  together  again,  but  left  the  same  in  a 
detached  and  divided  condition,  and  in  many  different  pieces, 
whereby  plaintiff  hath  been  put  to  great  trouble,  etc.  Plea, 
non  assumpsit. 

On  the  trial  before  Lord  Denman,  C.J.,  at  the  London  sit- 
tings after  last  Trinity  Term  a  verdict  was  found  for  the  de- 
fendant. 

John  Bayley  now  moved  in  arrest  of  judgment.  The  declara- 
tion shows  no  consideration.  There  should  have  been  either 
detriment  to  the  plaintiff  or  benefit  to  the  defendant,  i  Selwyn's 
N.  P.  45.'  It  does  not  appear  that  the  defendant  was  to  receive 
any  remuneration.     Besides  the  word  "  weigh"  is  ambiguous. 

Lord  Denman,  C.J.  It  seems  to  me  that  the  declaration  is 
well  enough.  The  defendant  had  some  reason  for  wishing  to 
weigh  the  boilers,  and  he  could  do  so  only  by  obtaining  permis- 
sion from  the  plaintiff,  which  he  did  obtain  by  promising  to  re- 
turn them  in  good  condition.  We  need  not  inquire  what 
benefit  he  expected  to  derive.  The  plaintiff  might  have  given 
or  refused  leave. 

Patteson,  J.  The  consideration  is,  that  the  plaintiff,  at  the 
defendant's  request,  had  consented  to  allow  the  defendant  to 

'  9th  ed. 


SEC.  nc]  BROOKS   7'.    IIAIGIi    AND   ANOTHER.  35 1 

weigh  the  boilers.     I   suppose  the  defendiint  thought  he  had 
some  benefit  ;  at  any  rate,  there  is  a  detriment  to  the  plaintiff 
from  his  parting  with  the  possession  for  even  so  short  a  time. 
Williams  and  Coleridge,  JJ.,  concurred. 
.Rule  refused. 


BROOKS  V.   HAIGH  and  Another. 

In  the  Exchequer  Chamber,  June  29,  1840. 

^Reported  ill  10  Adolpus  &^  Ellis  323.  J 

The  writ  of  error  set  out  the  pleadings,  of  which  the  material 
part  is  stated  in  the  preceding  report.  The  errors  assigned 
were  that  the  declaration  is  insufficient,  and  that  the  judgment 
was  for  the  plaintiffs  below,  whereas  it  ought  to  have  been  for 
the  defendant.  The  writ  of  error  was  argued  in  Trinity  vaca- 
tion (June  22d)  1840,  before  Lord  Abinger,  C.B.,  Bosanquet, 
Coltman,  and  Maule,  JJ.,  and  Alderson  and  Rolfe,  BB. 

J.  Ca)7ipbell  for  the  plaintiff  in  error. 

W.   IV.  Follett,  contra. 

Lord  Abinger,  C.B.,  in  the  same  vacation  (June  29th)  deliv- 
ered the  judgment  of  the  Court. 

In  the  case  of  Brooks  v.  Haigh  the  judgment  of  the  Court  is, 
to  affirm  the  judgment  of  the  Court  of  Queen's  Bench.' 

'  The  case  before  the  Queen's  Bench  is  reported  as  follows  in  10  A.  &  E., 
309: 

Assumpsit.  The  first  count  of  the  declaration  stated  that  heretofore,  to 
wit,  on,  etc.,  "  in  consideration  that  the  said  plaintiffs,  at  the  special  instance 
and  request  of  the  said  defendant,  would  give  up  to  him  a  certain  guarantee 
of  _;^  10,000  on  behalf  of  Messrs.  John  Lees  &  Son,  Manchester,  then  held  by 
the  said  plaintiffs,  he,  the  said  defendant,  undertook,  and  then  fa'thfully 
promised  the  said  plaintiffs  to  see  certain  bills,  accepted  by  the  said  Jlcssrs. 
John  Lees  &  Sons,  paid  at  maturity — that  is  to  say,  a  certain  bill  of  ex- 
change" bearing  date,  etc.,  drawn  by  plaintiffs  upon  and  accepted  by  the 
said  Lees  &  Sons,  paj^able  three  months  after  date,  for  ;/^3466  13^.  id.,  and 
made  payable  at,  etc.;  and  also  a  certain  other  bill,  etc.,  describing  two 
other  bills  for  ^^3000  and  ^i^  3200  drawn  by  plaintiffs  upon  and  accepted  by 
Lees  &  Sons,  and  made  payable  at,  etc.  Averment,  that  plaintiffs,  relying 
on  defendant's  said  promise,  did  then,  to  wit,  on,  etc..  "  give  up  to  the  said 
defendant  the  said  guarantee  of  ^10,000."  Breach,  nnn  payment  of  the 
bills,  when  they  afterward  came  to  maturity  by  Lees  &  Sons,  or  the  parties 
at  whose  houses  the  bills  respectivel}^  were  made  payable  or  by  defendant 
or  any  other  person,  etc. 

Third  plea  to  the  first  count.  "That  the  said  supposed  guarantee  of 
^  10,000,  in  consideration  of  the  giving  up  whereof  the  defendant  made 
such  supposed  promise  and  undertaking  as  therein  mentioned,  and  which 


352  BROOKS   V.    HAIGH   AND   ANOTHER.  [cHAP.  I. 

It  is  the  opinion  of  all  the  Court  that  there  was  in  the  guar- 
antee an  ambiguity  that  might  be  explained  by  evidence,  so  as 
to  make  it  a  valid  contract,  and,  therefore  this  was  a  sufficient 
consideration  for  the  promise  declared  upon. 

guarantee  was  so  given  up  to  the  said  defendant  as  therein  mentioned,  was 
a  special  promise  to  answer  the  said  plaintiffs  for  the  debt  and  default  of 
other  persons,  to  wit.  the  said  Messrs.  John  Lees  &  Sons  in  the  said  first 
count  mentioned  ;  and  that  no  agreement  in  respect  of,  or  relating  to,  the 
said  supposed  guarantee  or  special  promise,  or  any  memorandum  or  note 
thereof,  wherein  any  sufficient  consideration  for  the  said  guarantee  or 
special  promise  was  stated  or  shown,  was  in  writing  and  signed  by  the  said 
defendant,  or  any  other  person  by  him  thereunto  lawfully  authorized.  And 
the  said  defendant  further  saith  that  the  said  supposed  guarantee,  in  con- 
sideration of  the  giving  up  whereof  the  defendant  made  the  said  supposed 
promise  and  undertaking  in  the  said  first  count  mentioned,  and  which  was 
so  given  up  as  therein  mentioned,  was  and  is  contained  in  a  certain  memo- 
randum in  writing  signed  by  the  defendant,  and  which  was  and  is  in  the 
words  and  figures  and  to  the  effect  following — that  is  to  say  : 

"  '  Manchester,  February  4,  1837. 
"  '  Messrs.  Haigh  &  Franceys  : 

"  '  Gentlemen  :  In  consideration  of  your  being  in  advance  to  Messrs. 
John  Lees  &  Sons  in  the  sum  of  ;,^io,ooo  for  the  purchase  of  cotton,  I  do 
hereby  give  you  my  guarantee  for  that  amount  (say,  ;i(^io,ooo)  on  their  behalf. 

"  '  John  Brooks.' 

"  And  that  there  was  no  other  agreement  or  memorandum  or  note  thereof, 
in  respect  of,  or  relating  to,  the  said  last-mentioned  supposed  guarantee  or 
special  promise  ;  wherefore  the  said  defendant  says  that  the  supposed 
guarantee,  in  consideration  whereof  the  said  defendant  made  the  said  sup- 
posed promise  and  undertaking  in  the  said  first  count  mentioned,  was  and 
is  void  and  of  no  effect  ;  and  therefore  that  the  said  supposed  promise  and 
undertaking  in  the  said  first  count  mentioned  was  and  is  void  and  of  no 
effect."     Verification. 

Demurrer,  assigning  for  cause,  "  that  it  is  admitted  by  the  plea  that  the 
memorandum,  the  giving  up  of  which  was  the  consideration  of  the  guarantee 
in  the  said  declaration  mentioned,  was  actually  given  up  to  the  said 
defendant  by  the  said  plaintiffs,  and  the  consideration  was  therefore  ex- 
ecuted by  the  said  defendant,  and  that,  even  if  the  original  memorandum 
was  not  binding  in  point  of  law,  the  giving  up  was  a  sufficient  consideration 
for  the  promise  in  the  declaration  mentioned."     Joinder. 

The  demurrer  was  argued  in  last  Hilary  term.* 

W.   IV.  Follett  for  the  plaintiff, 

J.  Cajnpbell,  contra. 

Lord  Denman,  C.J.,  in  this  term  (June  6th)  delivered  the  judgment  of  the 
Court. 

This  action  was  brought  upon  an  asaanpsii  to  see  certain  acceptances 
paid,  in  consideration  of  the  plaintiffs  giving  up  a  guarantee  of  £  10,000 
due  from  the  acceptor  to  the  plaintiffs.  Plea,  that  the  guarantee  was  for 
the  debt  of  another,  and  that  there  was  no  writing  wherein  the  considera- 

*  January  i8th.  Before  Lord  Denman,  C.J. ,  Littledale,  Williams,  and 
Coleridge,  J  J. 


SEC.  11^.]      BROOKS  V.    HAIGH  AND  ANOTHER.         353 

It  is  also  the  opinion  of  all  the  Court,  with  the  exception  of 
my  Brother  Maule,  who  entertained  some  doubt  on  the  ques- 
tion, that  the  words  both  of  the  declaration  and  the  plea  import 
that  the  paper  on  which  the  guarantee  was  written  was  given 

tion  appeared,  signed  bj-  the  defendant,  and  so  the  giving  it  up  was  no 
good  consideration  for  the  promise.  Demurrer,  stating  for  cause  that  the 
plea  is  bad,  because  the  consideration  was  executed,  whether  the  guarantee 
were  binding  in  law  or  not.  Tiie  form  of  the  guarantee  was  set  out  in  the 
plea. 

"  In  consideration  of  your  being  in  advance  to  Messrs.  John  Lees  & 
Sons,  in  the  sum  of  ^10,000  for  the  purchase  of  cotton,  I  do  hereby  give 
you  my  guarantee  for  that  amount  (say,  ^10,000),  on  their  behalf. 

"  John  Brooks." 

It  was  argued  for  the  defendant  that  this  guarantee  is  of  no  force,  because 
the  fact  of  the  plaintiffs  being  already  in  advance  to  Lees  could  form  no 
consideration  for  the  defendant's  promise  to  guarantee  to  the  plaintiffs  the 
joayment  of  Lees's  acceptances.  In  the  first  place,  this  is  by  no  means 
clear.  That  "being  in  advance"  must  necessarily  mean  to  assert  that  he 
was  in  advance  at  the  time  of  giving  the  guarantee,  is  an  assertion  open  to 
argument.  It  may  possibly  have  been  intended  as  prospective.  If  the 
phrase  had  been  "  in  consideration  of  your  becoming  in  advance,"  or  ''on 
eo?tditio)i  of  your  being  in  advance,"  such  would  have  been  the  clear 
import.*  As  it  is,  nobody  can  doubt  that  the  defendant  took  a  great  interest 
in  the  affairs  of  Messrs.  Lees,  or  believe  that  the  plaintiffs  had  not  come 
under  the  advance  mentioned  at  the  defendant's  request.  Here  is  then 
sufficient  doubt  to  make  it  worth  the  defendant's  while  to  possess  himself 
of  the  guarantee  ;  and  if  that  be  so,  we  have  no  concern  with  the  adequacy 
or  inadequacy  of  the  price  paid  or  promised  for  it. 

But  we  are  by  no  means  prepared  to  say  that  any  circumstances  short  of 
the  imputation  of  fraud  in  fact  could  entitle  us  to  hold  that  a  party  was  not 
bound  by  a  promise  made  upon  any  consideration  which  could  be  valuable, 
while  of  its  being  so  the  promise  by  which  it  was  obtained  from  the  holder 
of  it  must  always  afTord  some  proof. 

Here,  whether  or  not  the  guarantee  could  have  been  available  within  the 
doctrine  of  Wain  v.  Warlters,f  the  plaintiffs  were  induced  by  the  defend- 
ant's promise  to  part  with  sometliing  which  they  might  have  kept,  and  the 
defendant  obtained  what  he  desired  by  means  of  that  promise.  Both  being 
free  and  able  to  judge  for  themselves,  how  can  the  defendant  be  justified  in 
breaking  this  promise,  by  discovering  afterward  that  the  thing  in  considera- 
tion of  which  he  gave  it  did  not  possess  that  value  ^vhich  he  supposed  to 
belong  to  it  ?  It  cannot  be  ascertained  that  that  value  was  what  he  most 
regarded.  He  may  have  had  other  objects  and  motives,  and  of  their 
weight  he  was  the  only  judge.  We  therefore  think  the  plea  bad,  and  the 
demurrer  must  prevail. 

Judgment  for  the  plaintiffs. 

There  was  also,  in  this  case,  an  issue  of  fact,  raising  the  question  whether 
or  not  the  plaintiffs  had  given  up  the  original  guarantee.  On  this  issue  the 
parties  went  to  trial  at  the  Liverpool  spring  assizes,  1S39,  before  Alderson,  B. 

*  See  the  discussion  on  the  words  "  for  giving  his  vote,"  in  Lord  Hunting- 
tower  V.  Gardiner,  i  B.  &  C.  297. 
\  5  East,  10. 


354  BROOKS   V.    HAIGH   AND   ANOTHER.  [CHAP.  I. 

Up,  and  that  the  actual  surrender  of  the  possession  of  the  paper 
to  the  defendant  was  a  sufficient  consideration  without  refer- 
ence to  its  contents. 
Judgment  affirmed. 

The  plaintiffs  called  on  the  defendant  to  produce  the  guarantee.  On  pro- 
duction it  appeared  to  be  unstamped,  and  Cresswell,  for  the  defendant, 
therefore  objected  to  its  being  read.  Alderson,  B.,  admitted  it,  and  the 
plaintiffs  had  a  verdict.  Cresswell  moved  for  a  new  trial  in  the  ensuing 
term  on  account  of  the  admission  of  that  evidence,  and  he  cited  Jardine  v. 
Paine.*  Patteson,  J.,  mentioned  Coppock  v.  Bowerf  and  Wallis  7/.  Broad- 
bent.l  The  rule  was  afterward  made  absolute  by  consent.  The  cause  was 
tried  again  at  the  Liverpool  spring  assizes,  1840,  before  Erskine,  J.  The 
guarantee  was  not  produced,  having  been  destroyed  since  the  last  trial  ;  but 
the  learned  judge  (assuming  it  not  to  have  been  stamped)  allowed  evidence 
to  be  given  of  its  contents  ;  and  on  this  ground  Cresswell,  in  the  ensuing 
Easter  Term,  moved  for  a  new  trial. §  He  referred  to  Crisp  v.  Anderson |[ 
and  Gillett  v.  Abbott.^r 

Cur.  adv.  vult. 

Lord  Denman,  C.J.,  in  the  same  term  (April  27th,  1840)  delivered  the 
judgment  of  the  Court.  This  was  an  action  on  an  agreement  made  in  con- 
sideration of  giving  up  a  former  guarantee.  Plea  that  the  guarantee  was 
not,  in  fact,  given  up.  On  a  former  trial,  before  Alderson,  B.,  the  paper  in 
question  was  produced  without  a  stamp.  The  learned  judge  received  the 
evidence,  and  we  thought  the  case  sufficiently  doubtful  to  grant  a  rule  for  a 
new  trial.  The  plaintiff  submitted  to  its  being  made  absolute,  and  a  second 
trial  took  place  before  my  Brother  Erskine  at  the  last  assizes.  In  deference 
to  the  former  decision,  which  had  not  been  overruled,  but  was  only  in  a 
course  of  investigation,  and,  as  we  understand,  with  some  intimation  that 
he  thought  the  evidence  admissible,  he  received  evidence  that  the  paper  (at 
the  time  of  the  trial  destroyed)  had  been  given  up  in  an  unstamped  state, 
which  raised  precisely  the  same  point.  A  motion  for  a  new  trial,  on  this 
ground,  has  now  been  made,  but  upon  more  consideration  we  agree  in 
opinion  with  the  two  learned  judges,  and  think  that  the  paper,  for  the  pur- 
pose for  which  it  was  produced,  required  no  stamp. 

The  authority  mainly  relied  on  for  the  opposite  doctrine  is  Jardine  v. 
Paine,**  but  the  unstamped  paper  there  was  the  very  bill  of  exchange  in 
respect  of  which  the  action  was  brought,  and  through  which  the  plaintiff 
must  have  made  out  his  title  to  recover.  There  was  an  attempt  to  resort  to 
the  unstamped  paper  to  show  the  amount  due,  which  would  have  been 
successful  if  the  acknowledgment  referring  to  it  had  been  made  to  the 
plaintiff,  but  it  was  made  to  the  holder  of  the  bill  ;  and  direct  proof  of  the 
bill  was  therefore  necessary.  The  principle  of  that  decision  may  be  taken 
from  Lord  Tenterden's  words  in  giving  judgment  ;  it  cannot  be  proved 
unstamped  as  a  security.  Now  the  paper  here  called  a  guarantee  was  not 
wanted  as  a  security,  but  as  a  description  of  the  consideration  for  the 
defendant's  promise.  An  inadequate  security  might,  from  various  motives, 
be  a  very  good  consideration  ;  and  this  document,  if  produced,  might  have 
been  read  to. the  jury  to  show  that  it  answered  the  description  in  the  dec- 

*  I  B.  &.  Ad.  663.  t  4  M.  &  W.  361.  t  4  A.  &  E.  877. 

^  April  i6th.  Before  Lord  Denman,  C.J.,  Littledale,  Patteson,  and  Cole- 
ridge, J  J. 

I  I  Stark.  N.  P.  C.  35.  ^I  7  A.  &  E.  783.  **  i  B.  &  Ad.  663. 


SEC.  11^,]  WHITE   V.   BLUETT.  355 


WHITE,  Executor  of  JOHN    BLUETT,  Deceased,  v. 
WILLIAM    BLUETT. 

In  the  Exchequer,  November  21,  1853. 
[Reported  in  23  Law  Journal  Reports,  Excheqiter,  Neiu  Series,  36.  J 

The  declaration  contained  a  count  upon  a  promissory  note 
made  by  the  defendant  payable  to  the  testator,  and  a  count  for 
money  lent. 

Plea,  as  to  the  said  first  count,  and  as  to  so  much  of  the 
residue  of  the  declaration  as  relates  to  money  payable  by  the 
defendant  to  the  said  J.  Bluett  for  money  lent  to  the  defendant, 
that  the  said  note  in  the  said  first  count  mentioned  was  deliv- 
ered by  him  to  the  said  J.  Bluett  as  in  the  declaration  supposed, 
and  by  the  said  J.  Bluett  taken  and  received  from  the  defendant 
for  and  on  account  of  the  said  money  so  payable  to  the  said 
J.  Bluett  as  in  this  plea  mentioned,  and  the  causes  of  action  in 
respect  thereof,  and  by  way  of  securing  the  same,  and  for  or 
on  account  of  no  other  debt  claim,  matter  or  thing  whatsoever. 
And  the  defendant  further  saith  that  the  said  J.  Bluett  was  the 
father  of  the  defendant,  and  that  afterward,  and  after  the  accru- 
ing of  the  causes  of  action  to  which  this  plea  is  pleaded,  and 
before  this  suit,  and  in  the  lifetime  of  the  said  J.  Bluett,  the 
defendant  complained  to  his  said  father  that  he,  the  defendant, 
had  not  received  at  his  hands  so  much  money  or  so  many  advan- 
tages as  the  other  children  of  the  said  J.  Bluett,  and  certain  con- 
troversies arose  between  the  defendant  and  his  said  father,  con- 
cerning the  premises,  and  the  said  J.  Bluett  afterward  admitted 
and  declared  to  the  defendant  that  his,  the  defendant's,  said 
complaints  were  well  founded,  and,  therefore,  afterward,  etc., 
it  was  agreed  by  and  between  the  said  J.  Bluett  and  the  defend- 
ant that  the  defendant  should  forever  cease  to  make  such  com- 
plaints, and  that  in  consideration  thereof,  and  in  order  to  do 
justice  to  the  defendant,  and  also  out  of  his,  the  said  J.  Bluett's, 
natural  love  and  affection  toward  the  defendant,  he,  the  said 
J.  Bluett,  would  discharge  the  defendant  of  and  from  all  liabil- 
ity in  respect  of  the  causes  of  action  to  which  this  plea  is  pleaded, 
and  would  accept  the  said  agreement  on  his,  the  defendant's, 
part  in  full  satisfaction  and  discharge  of  the  said  last-mentioned 

laration  of  a  guarantee,  though  it  was  not  a  binditig  guarantee  for  want  of 
a  stamp.     If  the  defendant  had  simply  pleaded  that  the   guarantee   was 
without  a  stamp,  such  plea  would  have  been  held  bad  on  demurrer. 
Rule  refused. — Ed. 


356  WHITE   V.    BLUETT.  [cHAP.  I, 

causes  of  action  ;  and  the  defendant  further  saith,  tliat  after- 
ward, and  in  the  lifetime  of  the  said  J.  Bluett,  and  before  this 
suit,  he,  the  said  J.  Bluett,  did  accept  of  and  from  the  defendant 
the  said  agreement  as  aforesaid,  in  full  satisfaction  and  dis- 
charge of  such  mentioned  causes  of  action. 

Demurrer  and  joinder. 

Bovill  in  support  of  the  demurrer.  The  plea  is  not  good  as 
to  either  count.  There  is  no  consideration  for  giving  up  the 
claim  on  the  money  count,  and  there  is  no  discharge  of  the 
liability  on  the  note. 

[Parke,  B.  By  the  law  merchant  the  holder  may  discharge 
the  acceptor  of  his  liability,  if  he  sufficiently  expresses  his  inten- 
tion not  to  insist  upon  payment  ;  but  there  is  no  such  intention 
here  averred.] 

T.  J.  Clark  in  support  of  the  plea.  The  plea  shows  an  agree- 
ment by  the  defendant,  and  that  in  consideration  of  such  agree- 
ment the  father  agreed  to  forego  the  debt. 

[Parke,  B.  Is  an  agreement  by  a  father,  in  consideration 
that  his  son  will  not  bore  him,  a  binding  contract  ?] 

The  plea  avers  that  the  complaints  were  well  founded.  The 
adequacy  of  the  consideration  for  a  promise  is  not  a  matter  of 
inquiry.  A  promise  is  a  good  consideration  for  a  promise,  if 
the  promisee  takes  upon  himself  a  liability  which  did  not  before 
attach  to  him.  Here  the  son  had  a  right  to  make  the  complaints 
mentioned,  and  his  agreeing  to  forego  that  right  and  abstain 
from  doing  what  he  legally  might  do  is  a  good  consideration, 
because  he  would  have  been  liable  to  an  action  if  he  had  broken 
his  promise.  It  falls  exactly  within  the  definition  of  a  consid- 
eration in  Chitty  on  Contracts,  p.  28,  as  the  defendant  subjected 
himself  to  an  obligation  by  his  promise,  and  also  to  a  detriment 
by  not.  being  able  to  continue  his  well-grounded  complaints. 
A  binding  agreement  with  mutual  promises  is  a  good  accord. 
He  cited  Com.  Dig.  tit.  "  Accord"  (B)  4,  and  Haigh  v.  Brooks.' 

Pollock,  C.B.  The  plea  is  clearly  bad.  By  the  argument  a 
principle  is  pressed  to  an  absurdity,  as  a  bubble  is  blown  until 
it  bursts.  Looking  at  the  words  merely,  there  is  some  founda- 
tion for  the  argument,  and,  following  the  words  only,  the  con- 
elusion  may  be  arrived  at.  It  is  said  the  son  had  a  right  to  an 
equal  distribution  of  his  father's  property,  and  did  complain  to 
his  father  because  he  had  not  an  equal  share,  and  said  to  him. 
"  I  will  cease  to  complain  if  you  will  not  sue  upon  this  note." 
Whereupon  the  father  said,  "  If  you  will  promise  me  not  to 
complain  I  will  give  up  the  note."  If  such  a  plea  as  this  could 
be  supported,  the  following  would  be  a  binding  promise  :  A 
'  10  Ad.  &  E.  309  ;  s.  c.  9  Law  J.  Rep.  (N.  S.)  Q.  B.  99. 


SEC.  Il<r.]  HART  V.    MILES.  357 

man  might  complain  that  another  person  used  the  public  high- 
way more  than  he  ought  to  do,  and  that  other  might  say,  "  Do 
not  complain,  and  I  will  give  yoU;,^5."  It  is  ridiculous  to  sup- 
pose that  such  promises  could  be  binding.  So,  if  the  holder  of 
a  bill  of  exchange  were  suing  the  acceptor,  and  the  acceptor 
were  to  complain  that  the  holder  had  treated  him  hardly,  or 
that  the  bill  ought  never  to  have  been  circulated,  and  the  holder 
were  to  say,  "  Now  if  you  will  not  make  any  more  complaints 
I  will  not  sue  you."  Such  a  promise  would  be  like  that  now 
set  up.  In  reality,  there  was  no  consideration  whatever.  The 
son  had  no  right  to  complain,  for  the  father  might  make  what 
distribution  of  his  property  he  liked  ;  and  the  son's  abstaining 
from  doing  what  he  had  no  right  to  do  can  be  no  consideration. 

Parke,  B.  I  am  of  the  same  opinion.  The  agreement  could 
not  be  enforced  against  the  defendant.  It  is  not  immaterial 
also  to  observe  that  the  testator  did  not  give  the  note  up.  It 
was  formerly  doubted  whether  a  simple  agreement  could  be 
pleaded  in  bar  (Lynn  v.  Bruce'),  but  there  have  been  many 
modern  cases  in  which  third  persons  have  been  parties  to  the 
agreement,  and  the  agreement  has  been  held  to  be  an  answer, 
and  it  may  be  that  such  an  agreement  would  do,  although  third, 
persons  were  not  parties  to  it.  But  that  question  does  not  arise 
here,  as  there  was  no  binding  agreement  at  all  by  the  defendant. 

Alderson,  B.  If  this  agreement  were  good,  there  could  be 
no  such  thing  as  a  nudum  pactum.  There  is  a  consideration  on 
one  side,  and  it  is  said  the  consideration  on  the  other  is  the 
agreement  itself  ;  if  that  were  so  there  could  never  be  a  nudum 
pactum. 

Platt,  B.,  concurred. 

Judgment  for  the  plaintiff. 


HART  V.   MILES. 

In  the  Common  Pleas,  April  23,  1858. 

[Reported  in  4  Common  Bench  Reports^  New  Series,  3 71. J 

The  first  count  of  the  declaration  stated  that,  in  consideration 
that  the  plaintiff  would  consent  to  the  defendant's  retaining 
possession  of  two  bills  of  exchange,  one  for  ^25  and  the  other 
for;^24  loi'.  6^.,  each  drawn  by  the  defendant  upon  and  accepted 
by  the  plaintiff,  and  payable  to  the  defendant's  order,  and  to 

»  1  H.  Black.  317. 


358  HART   V.    MILES.  [CHAP.  I. 

which  bills  the  plaintiff  was  then  entitled,  and  of  which  the  de- 
fendant was  then  the  holder,  but  not  for  value,  the  defendant 
promised  the  plaintiff  that,  if  he  should  succeed  in  procuring 
the  said  bills  or  either  of  them  to  be  discounted,  he  would  pay- 
to  Messrs.  Sotheron  &  Richardson  the  proceeds  of  such  dis- 
counting, or  a  suflRcient  part  thereof,  in  discharge  of  another 
bill  of  exchange  for  j£^$  ^s.  lod.,  or  of  so  much  thereof  as  such 
proceeds  would  satisfy  ;  and  the  defendant  succeeded  in  pro- 
curing the  said  first-mentioned  bills  to  be  discounted,  and  the 
plaintiff  did  all  things  necessary  to  have  the  defendant  perform 
his  said  promise,  and  a  reasonable  time  for  the  defendant  so  to 
do  elapsed  ;  yet  the  defendant  broke  his  said  promise  in  this, 
that  he  did  not  pay  the  proceeds,  or  any  part  thereof,  to  the 
said  Messrs.  Sotheron  &  Richardson,  in  discharge  of  the  said 
bill  of  exchange  for  ^45  ^s.  lod.,  or  any  part  thereof  ;  by  reason 
whereof  the  said  Messrs.  Sotheron  &  Richardson  obtained  judg- 
ment in  an  action  at  law  against  the  plaintiff  for  the  amount  of 
the  last-mentioned  bill,  and  damages  and  costs,  amounting  to  a 
large  sum,  to  wit,  ;£^\  4^.  2d.,  and  issued  execution  thereon, 
and  caused  the  plaintiff's  goods  to  be  seized  and  sold  in  satis- 
faction of  the  said  judgment,  and  of  the  poundage,  costs,  and 
expenses  of  the  said  execution,  amounting  in  the  whole  to  a 
large  sum,  to  wit,  ^64  2s.  lod.,  and  of  certain  arrears  of  rent  ; 
and  by  reason  thereof  the  goods  of  the  plaintiff,  to  a  much 
greater  value  than  the  amount  of  those  moneys,  were  sold  under 
the  said  execution,  for  the  purpose  of  raismg  the  said  moneys  ; 
and  thereby  the  plaintiff  was  greatly  injured  in  his  expectations, 
and  ruined  in  his  business  and  circumstances,  and  greatly 
harassed  and  impoverished  ;  and  by  reason  thereof  also  the 
plaintiff  became  liable  to  pay  the  two  first-mentioned  bills,  and 
may  have  to  pay  the  same,  and  was  put  to  costs  and  charges  in 
and  about  endeavoring  to  procure  the  holder  of  those  bills  not 
to  sue  the  plaintiff  thereon. 

The  defendant  pleaded,  among  other  pleas,  secondly,  that  he 
did  not  succeed  in  procuring  the  said  bills  to  be  discounted  as 
alleged.     Issue  thereon. 

The  cause  was  tried  before  Williams,  J.,  at  the  sittings  in 
London  after  last  term.  It  appeared  that  the  defendant  re- 
ceived the  two  bills  on  June  30th,  1857,  and  paid  them  in  to  his 
account  at  his  bankers',  where  they  were  entered  short,  but 
that,  shortly  afterward,  he  obtained  an  advance  from  the 
bankers,  upon  an  understanding  that  any  bills  in  their  hands 
belonging  to  him  might  be  discounted.  The  execution  took 
place  on  August  7th,  and  the  bills  became  due  in  September. 

On  the  part  of  the  defendant,  it  was  submitted  that  this  was 


SEC.  nc]  HART   V.    MILES.  359 

a  mere  naked  bailment,  and  that  the  defendant  was  acting  as 
agent  for  Messrs.  Sotheron  &  Richardson. 

The  learned  judge  left  it  to  the  jury  to  say  whether  the  de- 
fendant made  the  agreement  upon  his  own  responsibility, 
whether  he  did  succeed  in  getting  the  bills  discounted,  and 
whether  he  knew  of  the  discount  before  the  date  of  the  execu- 
tion, telling  them  that  if  he  did  know  of  the  discount  before 
that  event,  there  was  an  end  of  the  case,  except  as  to  damages  ; 
but  that  if  he  did  not,  he  would  not  be  liable. 

The  jury  returned  a  verdict  for  the  plaintiff — damages,  ^TS- 

Wordsworth,  Q.C.,  now  moved  for  a  new  trial  on  the  grounds 
of  misdirection,  and  that  the  verdict  was  against  evidence,  and 
also  in  arrest  of  judgment  as  to  the  first  count.  He  submitted 
that  the  question  of  agency  ought  to  have  been  more  pointedly 
put  to  the  jury,  and  that  they  should  have  been  told  that  the 
defendant  was  not  responsible  for  the  accidental  passing  of  the 
bills  to  his  debit  by  his  bankers  without  his  autliority.  As  to 
the  arrest  of  judgment,  he  contended  that  the  count  disclosed 
no  consideration  whatever  for  the  defendant's  promise  ;  and 
that,  and  at  the  utmost,  it  disclosed  a  mere  bailment  without 
reward.  [Willes,  J.  If  there  be  any  consideration,  we  cannot 
inquire  into  the  adequacy  of  it.  Haigh  v.  Brooks,  lo  Ad.  &  E. 
409,  4  P.  &  D.  288.] 

Crowder,  J.  I  am  of  opinion  that  there  is  no  ground  for 
arresting  the  judgment  in  this  case.  Looking  at  the  whole  dec- 
laration, though  it  certainly  is  somewhat  vague,  I  think  it  may 
be  supported,  and  that  the  consideration  stated  is  sufficient. 
The  statement  is  that,  in  consideration  that  the  plaintiff  would 
consent  to  the  defendant's  retaining  possession  of  two  bills  of 
exchange  (describing  them),  to  which  bills  the  plaintiff  was  then 
entitled,  and  of  which  the  defendant  was  then  the  holder,  but 
not  for  value,  the  defendant  promised,  etc.  It  is  clear  that  the 
bills  were  the  plaintiff's  property,  and  that  he  was  entitled  to 
the  possession  of  them  ;  and  it  is  equally  clear  that  they  were 
in  the  possession  of  the  defendant  without  value.  Instead  of 
requiring  him  to  give  them  up,  the  plaintiff  consents  that  the 
defendant  shall  retain  them  for  a  given  purpose — viz.,  to  get 
them  discounted.  That  is  a  sufficient  consideration  for  the 
defendant's  promise  to  dispose  of  the  proceeds  in  the  manner 
agreed  upon,  if  he  succeeded  in  getting  the  bills  discounted. 
If  the  defendant  had  not  made  the  promise  he  did,  the  plaintiff 
might  have  handed  the  bills  over  to  somebody  else  for  the  pur- 
pose of  procuring  them  to  be  discounted.  I  think  the  consider- 
ation was  sufficient  to  support  the  promise.  AS  to  the  alleged 
misdirection,  I  am  at  a  loss  to  discover  in  what  it  consisted.     It 


360  HART   V.    MILES.  [cHAP.  I. 

is  said  that  the  learned  judge  should  have  told  the  jury  that  the 
defendant  got  no  benefit  from  the  transaction  ;  and,  further, 
that  he  had  been  pressed  with  an  argument  that  the  case  was 
one  of  agency  only — that  the  defendant  was  acting  merely  as 
agent  for  Sotheron  &  Richardson — and  that  that  should  have 
been  put  to  the  jury.  The  learned  judge  did  ask  the  jury 
whether  the  defendant  made  the  agreement  upon  his  own  re- 
sponsibility. That  was  in  effect  putting  the  question  of  agency 
to  them.  The  defendant  clearly  did  not  make  the  promise  as 
agent  ;  it  was  an  original  undertaking.  I  see  no  ground  there- 
fore for  granting  a  rule  upon  this  point.  But,  with  regard  to 
the  evidence,  we  will  speak  to  the  learned  judge. 

WiLLES,  J.  I  agree  with  my  Brother  Crowder  that  there  was 
no  misdirection.  As  to  the  arrest  of  judgment,  I  also  agree 
with  him  in  thinking  that  the  declaration  discloses  a  sufficient 
consideration  for  the  defendant's  promise.  If  the  pleader  had 
reflected  a  little,  he  would  probably  have  stated  it  thus,  in  con- 
sideration of  the  plaintiff's  consenting  to  the  defendant's  retain- 
ing possession  of  the  bills,  and  getting  the  same  discounted  if 
he  could,  the  defendant  promised,  etc.  I  rather  think  he  was 
considering  how  the  promise  would  have  looked  had  it  been 
gathered  from  a  correspondence  between  the  parties.  If  the 
defendant  had  written  to  the  plaintiff  thus,  "  In  consideration 
of  your  consenting  to  my  retaining  the  bills  in  my  possession, 
I  undertake,  if  I  succeed  in  procuring  them  to  be  discounted, 
to  hand  over  the  proceeds  to  you  ;"  and  the  plaintiff  had  an- 
swered, "  I  assent  to  the  terms  of  your  letter  ;"  there  would 
have  been  a  contract  between  them  that  the  defendant  should 
procure  the  bills  to  be  discounted  if  he  could  and  hand  over  the 
proceeds.  That  is  the  contract  which  is  to  be  implied  here.  It 
is  do  ut  facias,  or  facio  ut  facias.  That  brings  me  to  my  last 
observation.  If  this  be  not  a  sufficient  consideration,  the  de- 
fendant might  have  procured  the  bills  to  be  discounted  without 
being  compellable  to  hand  over  the  proceeds.  Assuming  that 
there  was  no  consideration  in  the  first  instance,  the  fact  of  the 
defendant's  getting  the  money  in  the  end  makes  him  liable,  just 
as  a  man  who  gives  a  guarantee  for  goods  to  be  supplied  to  a 
third  person  incurs  no  liability  until  the  goods  are  supplied,  the 
contract  being  until  then  entirely  unilateral. 

BvLES,  J.  I  am  of  the  same  opinion.  The  true  meaning  of 
the  declaration  I  conceive  to  be  this,  that  the  plaintiff  intrusts 
or  continues  to  intrust  the  two  bills,  which  are  his  property,  to 
the  defendant  upon  certain  terms.  I  think,  for  the  reasons 
given  by  my  Brother  Willes,  that  was  a  good  consideration 
moving  from   the  plaintiff  for  the  defendant's  promise  to  hand 


SEC.  Iir.]  TALBOTT   V.    STEMMONS'    EXECUTOR.  361 

over  the  proceeds  if  he  succeeded  in  getting  the  bills  discounted. 
And  further,  as  my  Brother  Crovvder  observes,  if  the  defend- 
ant had  not  retained  the  bills,  the  plaintiff  might  have  got  them 
discounted  elsewhere.  The  loss  of  that  opportunity  was  a  detri- 
ment to  the  plaintiff,  which  would  be  of  itself  a  sufficient  con- 
sideration. Further,  the  declaration  alleges  that  the  defendant 
afterward  succeeded  in  getting  the  bills  discounted,  but  failed 
to  pay  over  the  proceeds.  There  is,  therefore,  a  good  consid- 
eration for  the  defendant's  promise  at  least  in  three  ways. 

Crowder,  J.,  on  a  subsequent  day  intimated  that  he  had  con- 
ferred with  Cresswell,  J.,  and  that  the  Court  saw  no  ground  for 
disturbing  the  verdict  upon  the  evidence. 

Rule  refused. 


TALBOTT  V.  STEMMONS'   Executor. 

In  the  Court  of  Appeals  of  Kentucky,  October  21,  1889, 

[Reported  i'n  89  Kentucky  Reports  222.] 

J.  Jf.  Bretit  for  appellant. 

Lockhart  6^  Lyng  for  appellee. 

Pryor,  J.,  delivered  the  opinion  of  the  Court, 

This  case  comes  from  the  Superior  Court  by  an  appeal. 

Mrs.  Sallie  D.  Stemmons,  the  step-grandmother  of  the  plain- 
tiff, Albert  R.  Talbott,  made  with  the  latter  the  following 
agreement  : 

"  April  26,  1880. 

"  I  do  promise  and  bind  myself  to  give  my  grandson,  Albert  R. 
Talbott,  $500  at  my  death  if  he  will  never  take  another  chew  of 
tobacco  or  smoke  another  cigar  during  my  life,  from  this  date 
up  to  my  death  ;  and  if  he  breaks  this  pledge,  he  is  to  refund 
double  the  amount  to  his  mother. 

(Signed)  "  Albert  R.  Talbott, 

Sallie  D.  Stemmons." 

The  grandmother  died,  and  this  action  was  instituted  by  the 
grandson  against  her  personal  representative  to  recover  the 
$500,  the  plaintiff  alleging  that,  from  the  date  of  the  agreement 
to  the  filing  of  this  action  by  him,  he  had  not  smoked  a  cigar 
or  taken  a  chew  of  tobacco,  etc. 

A  general  demurrer  was  filed  to  the  petition  that  was  sus- 
tained by  the  Court  below,  and  the  action  dismissed.  It  is 
insisted   by   counsel    for    the    personal   representative   tliat   the 


62  TALBOTT   V.    STEMMONS'    EXECUTOR.  [cHAP.  I. 


agreement  by  the  grandmother  to  pay  the  $500  is  not  based  on 
a  sufficient  consideration,  either  good  or  valuable,  and  being  a 
mere  gratuitous  undertaking,  cannot  be  enforced. 

There  is  nothing  in  such  an  agreement  inconsistent  with 
public  policy,  or  any  act  required  to  be  done  by  the  plaintiff  in 
violation  of  law,  but,  on  the  contrary,  the  step-grandmother 
was  desirous  of  inducing  the  grandson  to  abstain  from  a  habit, 
the  indulgence  of  which,  she  believed,  created  an  useless  ex- 
pense, and  would  likely,  if  persisted  in,  be  attended  with  per- 
nicious results.  An  agreement  or  promise  to  reform  her  grand- 
son in  this  particular  was  not  repugnant  to  law  or  good  morals, 
nor  was  the  use  of  what  the  latter  deemed  a  luxury  or  enjoy- 
ment a  violation  of  either,  and  so  there  was  nothing  in  the  law 
preventing  the  parties  from  making  a  valid  contract  in  reference 
to  the  subject-matter. 

In  the  classification  of  contracts  by  the  elementary  writers,  it 
is  said  :  "  An  agreement  by  the  one  party  to  give,  in  considera- 
tion of  something  to  be  done  or  forborne  by  the  other  party,  or 
the  agreement  by  one  to  do  or  forbear  in  consideration  of  some- 
thing to  be  given  by  the  other,  are  such  contracts,  when  not  in 
violation  of  law,  as  will  be  held  valid."  Whether  the  act  of 
forbearance  or  the  act  done  by  the  party  claiming  the  money 
was  or  not  of  benefit  to  him  is  a  question  that  does  not  arise  in 
the  case.  If  he  has  complied  with  his  contract,  although  its 
performance  may  have  proved  otherwise  beneficial,  the  perform- 
ance on  his  part  was  a  sufficient  consideration  for  the  promise 
to  pay. 

The  right  to  enjoy  the  use  of  tobacco  was  a  right  that  be- 
longed to  the  plaintiff,  and  not  forbidden  by  law.  The  aban- 
donment of  its  use  may  have  saved  him  money  or  contributed 
to  his  health  ;  nevertheless  the  surrender  of  that  right  caused 
the  promise,  and  having  the  right  to  contract  with  reference  to 
the  subject-matter,  the  abandonment  of  the  use  was  a  sufficient 
consideration  to  uphold  the  promise. 

Parsons,  in  his  work  on  Contracts,  says  :  "  The  subject-matter 
of  every  contract  is  something  which  is  to  be  done  or  which  is 
to  be  omitted,"  and  where  the  consideration  is  valuable,  need 
not  be  adequate.  (Vol.  I.,  7th  ed.,  489.)  If,  therefore,  one 
parts  with  that  he  has  the  right  to  use  and  enjoy,  the  question 
of  injury  or  benefit  to  the  party  seeking  a  recovery,  by  reason 
of  a  full  performance  on  his  part,  will  not  be  inquired  into, 
because  if  he  had  the  legal  right  to  use  that  which  he  has  ceased 
to  use  by  reason  of  the  promise,  the  law  attaches  a  pecuniary 
value  to  it. 

If  this  was  an  action  to  recover  such  damages  as  the  party 


SEC.  Iir.]  HAMER   V.    SIDWAY.  363 

had  sustained  by  reason  of  the  violation  of  the  covenant  or 
promise,  the  verdict  or  judgment  would  doubtless  be  nominal 
only  ;  but  where  the  parties  have  agreed  on  the  amount  to  be 
paid  on  the  performance  of  certain  conditions,  when  a  compli- 
ance with  those  conditions  has  been  alleged  and  shown,  the  sum 
agreed  on  must  be  paid.  Whether  or  not  the  mother  of  the 
young  man  could  recover  the  penalty  imposed,  on  his  failure  to 
comply  with  his  undertaking,  is  not  necessary  to  be  decided. 
■It  is  sufficient  to  say  that  the  abandonment  of  the  use  of  tobacco 
was  such  a  consideration  as  authorized  a  recovery  of  the  sum 
agreed  on. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  cause  re- 
manded with  directions  to  overrule  the  demurrer,  and  for  pro- 
ceedings consistent  with  this  opinion. 


LOUISA  W.  HAMER,  Appellant,  v.  FRANKLIN  SIDWAY, 
AS  Executor,  etc..  Respondent. 

In  the  Court  of  Appeals  of   New  York,  Second  Division, 

April  14,  1891. 

[Reported  in  124  New  York  Reports  538.  J 

Appeal  from  order  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department,  made  July  ist,  1890, 
which  reversed  a  judgment  in  favor  of  plaintiff  entered  upon  a 
decision  of  the  Court  on  trial  at  Special  Term  and  granted  a 
new  trial. 

This  action  was  brought  upon  an  alleged  contract. 

The  plaintiff  presented  a  claim  to  the  executor  of  William  E. 
Story,  Sr.,  for  $5000  and  interest  from  February  6th,  1875. 
She  acquired  it  through  several  mesne  assignments  from  William 
E.  Story,  second.  The  claim  being  rejected  by  the  executor, 
this  action  was  brought.  It  appears  that  William  E.  Story,  Sr., 
was  the  uncle  of  William  E.  Story,  second  ;  that  at  the  celebra- 
tion of  the  golden  wedding  of  Samuel  Story  and  wife,  father 
and  mother  of  William  E.  Story,  Sr.,  on  March  20th,  1869,  in 
the  presence  of  the  family  and  invited  guests  he  promised  his 
nephew  that  if  he  would  refrain  from  drinking,  using  tobacco, 
swearing,  and  playing  cards  or  billiards  for  money  until  he 
became  twenty-one  years  of  age  he  would  pay  him  a  sum  of 
$5000.  The  nephew  assented  thereto  and  fully  performed  the 
conditions  inducing  the  promise.     When  the  nephew  arrived  at 


364  HAMER   V.    SIDWAY.  [cHAP,  I. 

the  age  of  twenty-one  years,  and  on  January  31st,  1875,  he 
wrote  to  his  uncle  informing  him  that  he  had  performed  his  part 
of  the  agreement,  and  had  thereby  become  entitled  to  the  sum 
of  $5000.  The  uncle  received  the  letter,  and  a  few  days  later, 
and  on  February  6th,  he  wrote  and  mailed  to  his  nephew  the 

following  letter  : 

"  Buffalo,  February  6,  1875. 
"  W.  E.  Story,  Jr. 

"  Dear  Nephew  :  Your  letter  of  the  31st  ult.  came  to  hand 
all  right,  saying  that  you  had  lived  up  to  the  promise  made  to 
me  several  years  ago.  I  have  no  doubt  but  you  have,  for  which 
you  shall  have  $5000,  as  I  promised  you.  I  had  the  money  in 
the  bank  the  day  you  was  twenty-one  years  old  that  I  intend 
for  you,  and  you  shall  have  the  money  certain.  Now,  Willie, 
I  do  not  intend  to  interfere  with  this  money  in  any  way  till  I 
think  you  are  capable  of  taking  care  of  it,  and  the  sooner  that 
time  comes  the  better  it  will  please  me.  I  would  hate  very 
much  to  have  you  start  out  in  some  adventure  that  you  thought 
all  right,  and  lose  this  money  in  one  year.  The  first  $5000  that 
I  got  together  cost  me  aheap  of  hard  work.  You  would  hardly 
believe  me  when  I  tell  you  that  to  obtain  this  I  shoved  a  jack- 
plane  many  a  day,  butchered  three  or  four  years,  then  came  to 
this  city,  and  after  three  months'  perseverance  I  obtained  a  situ- 
ation in  a  grocery  store.  I  opened  this  store  early,  closed  late, 
slept  in  the  fourth  story  of  the  building  in  a  room  30  by  40  feet, 
and  not  a  human  being  in  the  building  but  myself.  All  this 
I  done  to  live  as  cheap  as  I  could  to  save  something.  I  don't 
want  you  to  take  up  with  this  kind  of  fare.  I  was  here  in  the 
cholera  season  '49  and  '52,  and  the  deaths  averaged  80  to  125 
daily,  and  plenty  of  small-pox.  I  wanted  to  go  home,  but 
Mr.  Fisk,  the  gentleman  I  was  working  for,  told  me  if  I  left 
then,  after  it  got  healthy  he  probably  would  not  want  me.  I 
stayed.  All  the  money  I  have  saved  I  know  just  how  I  got  it. 
It  did  not  come  to  me  in  any  mysterious  way,  and  the  reason 
I  speak  of  this  is  that  money  got  in  this  way  stops  longer  with 
a  fellow  that  gets  it  with  hard  knocks  than  it  does  when  he 
finds  it.  Willie,  you  are  twenty-one,  and  you  have  many  a 
thing  to  learn  yet.  This  money  you  have  earned  much  easier 
than  I  did,  besides  acquiring  good  habits  at  the  same  time,  and 
you  are  quite  welcome  to  the  money.  Hope  you  will  make 
good  use  of  it.  I  was  ten  long  years  getting  this  together  after 
I  was  your  age.  Now,  hoping  this  will  be  satisfactory,  I  stop. 
One  thing  more.  Twenty-one  years  ago  I  bought  you  fifteen 
sheep.  These  sheep  were  put  out  to  double  every  four  yeais. 
I  kept  track  of  them  the  first  eight  years  ;  I  have  not  heard 


SEC.  Iir.]  HAMER  V.    SIDWAY.  365 

much  about  them  since.  Your  fiither  and  grandfather  prom- 
ised me  that  they  would  look  after  them  till  you  were  of  age. 
Have  they  done  so  ?  I  hope  they  have.  By  this  time  you  have 
between  500  and  600  sheep,  worth  a  nice  little  income  this 
spring.  Willie,  I  have  said  much  more  than  I  expected  to. 
Hope  you  can  make  out  what  I  have  written.  To-day  is  the 
seventeenth  day  that  I  have  not  been  out  of  my  room,  and  have 
had  the  doctor  as  many  days.  Am  a  little  better  to-day  ;  think 
I  will  get  out  next  week.  You  need  not  mention  to  father,  as 
he  always  worries  about  small  matters. 

"  Truly  yours, 

"  W.  E.  Story. 
"  P.S. — You  can  consider  this  money  on  interest." 

The  nephew  received  the  letter,  and  thereafter  consented  that 
the  money  should  remain  with  his  uncle  in  accordance  with  the 
terms  and  conditions  of  the  letters.  The  uncle  died  on  Jan- 
uary 29th,  1887,  without  having  paid  over  to  his  nephew  any 
portion  of  the  said  $5000  and  interest. 

H.  J.  Swift  for  appellant. 

Adelbert  Moot  for  respondent. 

Parker,  J.'  The  question  which  provoked  the  most  discus- 
sion by  counsel  on  this  appeal,  and  which  lies  at  the  foundation 
of  plaintiff's  asserted  right  of  recovery,  is  whether  by  virtue  of 
a  contract  defendant's  testator,  William  E.  Story,  became  in- 
debted to  his  nephew,  William  E.  Story,  second,  on  his  twenty- 
first  birthday  in  the  sum  of  $5000.  The  trial  Court  found  as  a 
fact  that  "  on  March  20th,  1869,  .  .  .  William  E.  Story  agreed 
to  and  with  William  E.  Story,  second,  that  if  he  would  refrain 
from  drinking  liquor,  using  tobacco,  swearing,  and  playing 
cards  or  billiards  for  money  until  he  should  become  twenty-one 
years  of  age,  then  he,  the  said  William  E.  Story,  would  at  tliat 
time  pay  him,  the  said  William  E.  Story,  second,  the  sum  of 
$5000  for  such  refraining,  to  which  the  said  William  E.  Story, 
second,  agreed,"  and  that  he  "  in  all  things  fully  performed  his 
part  of  said  agreement." 

The  defendant  contends  that  the  contract  was  without  con- 
sideration to  support  it,  and,  therefore,  invalid.  He  asserts 
that  the  promisee  by  refraining  from  the  use  of  liquor  and 
tobacco  was  not  harmed,  but  benefited  ;  that  that  which  he  did 
was  best  for  him  to  do  independently  of  his  uncle's  promise, 
and  insists  that  it  follows  that  unless  the   promisor  was  bene- 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  the  question  of  con- 
sideration. A  portion  of  the  opinion  containing  a  citation  and  discussion  of 
cases  involving  the  question  of  consideration  has  also  beefl  omitted.— Ed. 


366  HAMER  V.    SIDWAY.  [CHAP.  1. 

fited,  the  contract  was  without  consideration.  A  contention, 
which  if  well  founded,  would  seem  to  leave  open  for  contro- 
versy in  many  cases  whether  that  which  the  promisee  did  or 
omitted  to  do  was,  in  fact,  of  such  benefit  to  him  as  to  leave  no 
consideration  to  support  the  enforcement  of  the  promisor's 
agreement.  Such  a  rule  could  not  be  tolerated,  and  is  without 
foundation  in  the  law.  The  Exchequer  Chamber,  in  1875,  de- 
fined consideration  as  follows  :  "  A  valuable  consideration  in 
the  sense  of  the  law  may  consist  either  in  some  right,  interest, 
profit,  or  benefit  accruing  to  the  one  party,  or  some  forbearance, 
detriment,  loss,  or  responsibility  given,  suffered  or  undertaken 
by  the  other."  Courts  "  will  not  ask  whether  the  thing  which 
forms  the  consideration  does  in  fact  benefit  the  promisee  or  a 
t'liird  party,  or  is  of  any  substantial  value  to  any  one.  It  is 
enough  that  something  is  promised,  done,  forborne,  or  suffered 
by  the  party  to  whom  the  promise  is  made  as  consideration  for 
the  promise  made  to  him."     (Anson's  Prin.  of  Con.  63.) 

"  In  general  a  waiver  of  any  legal  right  at  the  request  of 
another  party  is  a  sufficient  consideration  for  a  promise." 
(Parsons  on  Contracts,  444.) 

"  Any  damage  or  suspension  or  forbearance  of  a  right  will  be 
sufficient  to  sustain  a  promise."      (Kent,  Vol.  II.,  465,  12th  ed.) 

Pollock,  in  his  work  on  Contracts,  page  166,  after  citing  the 
definition  given  by  the  Exchequer  Chamber  already  quoted, 
says  :  "  The  second  branch  of  this  judicial  description  is  really 
the  most  important  one.  Consideration  means  not  so  much 
that  one  party  is  profiting  as  that  the  other  abandons  some 
legal  right  in  the  present  or  limits  his  legal  freedom  of  action 
in  the  future  as  an  inducement  for  the  promise  of  the  first." 

Now,  applying  this  rule  to  the  facts  before  us,  the  promisee 
used  tobacco,  occasionally  drank  liquor,  and  he  had  a  legal 
right  to  do  so.  That  right  he  abandoned  for  a  period  of  years 
upon  the  strength  of  the  promise  of  the  testator  that  for  such 
forbearance  he  would  give  him  $5000.  We  need  not  speculate 
on  the  effort  which  may  have  been  required  to  give  up  the  use 
of  those  stimulants.  It  is  sufficient  that  he  restricted  his  lawful 
freedom  of  action  within  certain  prescribed  limits  upon  the 
faith  of  his  uncle's  agreement,  and  now  having  fully  performed 
the  conditions  imposed,  it  is  of  no  moment  whether  such  per- 
formance actually  proved  a  benefit  to  the  promisor,  and  the 
Court  will  not  inquire  into  it  ;  but  were  it  a  proper  subject  of 
inquiry,  we  see  nothing  in  this  record  that  would  permit  a  de- 
termination that  the  uncle  was  not  benefited  in  a  legal  sense. 
Few  cases  have  been  found  which  may  be  said  to  be  precisely  in 
point,  but  such  as  have  been  support  the  position  we  have  taken. 


m 


SEC.  11^.]  DUNTON   V.   DUNTON.  367 

The  order  appealed  from  should  be  reversed  and  the  judg- 
ment of  the  Special  Term  affirmed,  with  costs  payable  out  of 
the  estate. 
All  concur. 
.Order  reversed  and  judgment  of  Special  Term  affirmed. 


DUNTON  V.  DUNTON. 

In  the  Supreme  Court  of  Victoria,  March  31,  1892. 
\^Reported  171  18  Victorian  Law  Reports  114.] 

Special  case  stated  by  the  judge  of  the  County  Court,  at 
Melbourne. 

The  plaintiff  brought  an  action  to  recover  payment  of  j[^(i 
under  an  agreement  made  between  the  plaintiff  and  defendant. 
The  agreement  was  in  the  following  form  :  "  Memorandum  of 
agreement  made  and  entered  into  August  30th,  1890,  between 
John  Dunton  and  Louisa  Dunton,  formerly  the  wife  of  John 
Dunton.  Whereas  the  said  marriage,  had  and  solemnized 
between  the  said  John  Dunton  and  Louisa  Dunton,  was,  on 
March  12th,  1890,  dissolved  by  the  Supreme  Court  upon  the 
petition  of  John  Dunton,  and  whereas,  notwithstanding  the  said 
dissolution,  the  said  John  Dunton  is  desirous  of  making  pro- 
vision for  the  said  Louisa  Dunton  so  long  as  she,  the  said 
Louisa  Dunton,  shall  conduct  herself  with  sobriety,  and  in  a 
respectable,  orderly,  and  virtuous  manner.  Now  this  agree- 
ment witnesseth  that  in  the  consideration  of  the  premises  the 
said  John  Dunton  hereby  agrees  to  pay  the  said  Louisa  Dunton 
the  sum  of  ^d  per  month,  from  September  ist,  1890,  she  there- 
out maintaining  and  clothing  herself  ;  such  sum  to  be  payable 
on  the  first  day  in  every  month  during  the  continuance  of  this 
agreement,  the  first  of  such  payments  to  be  made  on  Septem- 
ber ist,  1890.  Provided  always  that  in  the  event  of  the  said 
Louisa  Dunton  at  any  time  committing  any  act  whereby  she  or 
the  said  John  Dunton  shall,  or  may,  become  subjected  to  per- 
sonal hate,  contempt,  or  ridicule,  or  if  the  said  Louisa  Dunton 
shall  not  conduct  herself  with  sobriety,  and  in  a  respectable, 
orderly,  and  virtuous  manner,  and  with  all  respect  to  the  said 
John  Dunton,  then  the  said  John  Dunton  may,  at  his  option, 
immediately  cease  the  payment  of  the  above-mentioned  sum, 
and  put  an  end  to  this  agreement."  The  question  for  the  con- 
sideration of  the  full   Court  was  whether  this  agreement  was 


368  DUNTON   V.    DUNTON.  [CHAP.  I. 

binding  or  whether  it  was  nudu»i  pactum  for  want  of  consid- 
eration. 

Skinner  for  the  plaintiff. 

Cussen  for  the  defendant. 

Hood,  J,  Louisa  Dunton  sued  John  Dunton  in  the  County 
Court  to  recover  the  sum  of  £,(i  as  the  amount  agreed  to  be 
paid  by  the  defendant  under  a  written  agreement  for  the  main- 
tenance of  the  plaintiff.  At  the  trial  a  question  was  raised  as 
to  whether  the  alleged  agreement  was  binding  upon  the  defend- 
ant, and  that  question  was  reserved  for  the  opinion  of  this 
Couit. 

The  document  is  called  a  memorandum  of  agreement,  and 
apparently  was  signed  by  both  parties.  It  recites  that  they  had 
been  married,  but  that  the  marriage  had  been  dissolved  on  the 
petition  of  the  husband,  and  it  then  proceeds  as  follows  :  "  And 
whereas,  notwithstanding  the  said  dissolution,  the  said  John 
Dunton  is  desirous  of  making  provision  for  the  said  Louisa 
Dunton  so  long  as  she,  the  said  Louisa  Dunton,  shall  conduct 
herself  with  sobriety,  and  in  a  respectable,  orderly,  and  virtu- 
ous manner.  Now  this  agreement  witnesseth  that  in  consider- 
ation of  the  premises  the  said  John  Dunton  agrees  to  pay  the 
said  Louisa  Dunton  the  sum  of  ^6  per  month."  It  then  con- 
tains a  proviso  that  in  the  event  of  Louisa  Dunton  committing 
any  act  whereby  she  or  the  said  John  Dunton  may  be  subjected 
to  hate,  contempt,  or  ridicule,  or  if  she  shall  not  conduct  her- 
self with  sobriety,  and  in  a  respectable,  orderly,  and  virtuous 
manner,  and  with  all  respect  to  the  said  John  Dunton,  then  he 
may  put  an  end  to  the  agreement. 

The  motive  of  the  defendant  in  signing  this  document  is 
clear.  He  desired  to  provide  for  the  woman  who  had  been  his 
wife,  and  who  was  the  mother  of  his  children,  in  such  a  way  as 
to  induce  her  not  to  disgrace  herself,  him,  or  them.  But  the 
question  we  have  to  decide  is  whether  this  document  constitutes 
a  valid  agreement,  and  we  have  nothing  to  do  with  the  mo.ives 
of  the  parties  except  so  far  as  they  are  expressed  in  a  binding 
legal  document.  A  man's  motives  cannot  form  any  considera- 
tion for  a  contract.  If  this  document  is  to  be  held  binding 
upon  the  defendant,  it  must  be  because  there  is  some  legal  con- 
sideration moving  from  the  plaintiff  upon  which  the  defendant's 
promise  is  founded.  In  my  opinion  the  only  consideration  ex- 
pressed on  the  face  of  the  document  is  the  defendant's  desire  to 
make  provision  for  the  plaintiff,  and  that  clearly  would  not  be 
sufficient.  It  was,  however,  contended  that  the  real  considera- 
tion is  an  implied  promise  by  her  that  she  will  conduct  herself 
with  sobriety,  and  in  a  respectable,  orderly,  and  virtuous  man- 


I 


SEC.  nc]  DUNTON   7>.    DUNTON.  369 

ner,  and  that  the  benefit  to  the  defendant  would  lie  in  the  pre- 
vention of  the  annoyance  and  disgrace  that  might  be  caused  to 
him  and  his  children,  in  the  event  of  the  plaintiff  misbehaving 
herself.  I  cannot  imply  such  a  promise  from  the  document, 
but  even  if  it  were  expressed  therein  it  would  not,  in  my  opin- 
ion, constitute  a  consideration  for  the  defendant's  agreement. 
A  promise  in  order  to  be  a  good  consideration  must  be  such  as 
may  be  enforced.  It  must,  therefore,  be  not  only  lawful,  and 
in  itself  possible,  but  it  must  also  be  reasonably  definite.  Now, 
a  promise  by  a  woman  that  she  will  conduct  herself  with  sobri- 
ety, and  in  a  respectable,  orderly,  and  virtuous  manner,  seems 
to  me  to  be  about  as  vague  a  promise  as  can  well  be  imagined. 
What  are  the  acts  which  she  is  to  do  or  to  refrain  from  doing  ? 
What  is  the  meaning  to  be  attached  to  the  words  if  looked  at 
in  the  light  of  a  definite  promise  ?  A  promise  by  a  woman  that 
she  will  conduct  herself  with  sobriety  may  mean  that  she  will 
not  drink  intoxicating  liquor  at  all,  or  that  she  will  not  get 
drunk,  or  it  may  mean  that  she  may  do  either  so  long  as  she 
does  not  do  so  in  public.  So  with  conducting  herself  in  a  vir- 
tuous manner.  Is  that  in  public  or  in  private,  and  does  it  in- 
clude anything  short  of  unchastity  ?  As  to  respectability  and 
order,  they  are  words  of  such  varying  meaning  that  I  cannot 
understand  any  agreement  about  them.  All  this  makes  me  un- 
able to  see  any  promise  whatever  made  by  the  plaintiff  in  this 
document,  and  in  any  event  forces  me  to  the  conclusion  that 
such  a  promise  is  too  uncertain  to  form  the  consideration  for 
any  legal  agreement.  A  contract  founded  upon  such  an  illu- 
sory consideration  appears  to  me  to  be  as  invalid  as  a  promise 
by  a  father  made  in  consideration  that  his  son  would  not  bore 
him  (White  v.  Bluett")  ;  and  it  is  not  nearly  so  certain  as  an 
agreement  by  a  married  woman  that  she  would  attend  upon  her 
aged  father  and  mother  as  long  as  they  lived,  and  provide  them 
with  necessary  services,  and  in  consideration  thereof  her  father 
should,  when  requested,  transfer  to  her  his  interest  in  certain 
land  ;  an  agreement  which  the  late  Molesworth,  J.,  considered 
void  for  uncertainty  (Shiels  v.  Drysdale^).  It  must  be  remem- 
bered that  we  have  not  here  to  consider  a  case  of  a  plaintiff 
being  induced  to  alter  her  position  by  reason  of  a  promise  made 
by  the  defendant.  The  plaintiff  does  not  allege  that  she  did, 
or  refrained  from  doing,  anything  depending  upon  the  defend- 
ant's promise.  If  she  had  stated  that  she  did  not  get  drunk, 
as  she  otherwise  would  have  done,  or  that  she  remained  chaste 
or  orderly  or  respectable  solely  in  consequence  of  the  defend- 
ant's promise,  and  relying  thereon,  she  might,  perhaps,  have 
1  23  L.  J.  Ex.,  at  p.  37,  per  Parke,  B.  '  6  V.  L.  R.  Eq.  126. 


370  DUNTON   V.    DUNTON.  [CHAP.  I 

brought  herself  under  a  different  rule  ;  but  the  very  suggestion 
of  such  a  statement  shows  to  my  mind  the  impossibility  of  its 
ever  forming  the  consideration  for  the.  contract  upon  which 
alone  she  sues. 

For  these  reasons  I  find  myself  unable  to  concur  in  the  judg- 
ment of  the  Court. 

HiGiNBOTHAM,  C.J.  This  is  a  special  case  by  the  learned 
judge  of  the  County  Court  at  Melbourne,  under  §  135  of  the 
County  Court  Act  1890.  The  question  reserved  for  the  opinion 
of  this  Court  is  whether  the  agreement  (Exhibit  A)  in  the  action 
is  binding,  or  is  nudufn  pactum  for  want  of  consideration.  The 
agreement  is  in  the  following  terms.' 

I  am  of  opinion  that  this  agreement  is  binding,  and  that  it  is 
not  nudiivi  pactum,  or  void  for  want  of  consideration.  It  has 
been  contended  for  the  defendant  that  the  written  agreement 
discloses  no  consideration  for  the  defendant's  promise  to  pay 
the  plaintiff  ^6  per  month,  that  his  promise  therefore  was  a 
purely  voluntary  one,  and  performance  of  it  cannot  be  enforced 
by  action.  The  agreement  was  signed  by  the  plaintiff.  The 
terms  of  it  clearly  imply,  in  my  opinion,  a  promise  on  her  part 
that  she  will  conduct  herself  with  sobriety,  and  in  a  respectable, 
orderly,  and  virtuous  manner.  But  it  was  said  that  this  was 
only  a  promise  to  do  that  which  the  plaintiff  was  already  bound 
to  do,  and  that  such  a  promise  does  not  constitute  a  good  con- 
sideration.°  It  is  true  that  if  a  person  promises  not  to  do  some- 
thing which  he  cannot  lawfully  do,  and  which,  if  done,  would 
be  either  a  legal  wrong  to  the  promisee,  or  an  act  forbidden  by 
law,  such  promise  is  no  consideration  for  the  promise  of  the 
other  party  to  the  alleged  contract  founded  on  mutual  prom- 
ises. The  case  of  Jamieson  v.  Renwick,^  and  tiie  authorities 
there  cited,  support  that  rule.  But  they  also  show  that  a  prom- 
ise not  to  do,  or  to  do  something  which  the  promisor  may  law- 
fully and  without  wrong  to  the  promisee  do  or  abstain  from 
doing,  is  a  good  consideration.  In  the  present  case  the  plaintiff 
was  released  by  the  decree  for  the  dissolution  of  marriage  from 
her  conjugal  obligation  to  the  defendant  to  conduct  herself  with 
sobriety,  and  in  a  respectable,  orderly,  and  virtuous  manner  ; 
and  conduct  of  an  opposite  character  would  not  necessarily  in- 
volve a  breach  on  her  part  of  any  human  law  other  than  the  law 
of  marriage,  which  had  ceased  to  bind  her.      She  was  legally  at 

'  The  agreement  has  been  omitted. — Ed. 

*  So  much  of  the  case  as  relates  to  the  sufficiency  of  such  a  promise  as  a 
consideration  should  be  considered  in  connection  with  the  cases  infra, 
pp.  . — Ed. 

3  17  V.  L.  R.  124. 


t. 


SEC.  uc]  DUNTON   V.    DUNTON.  37 1 

liberty,  so  far  as  the  defendant  was  concerned,  to  conduct  her- 
self in  these  respects  as  she  might  think  fit,  and  her  promise  to 
surrender  her  liberty  and  to  conduct  herself  in  the  manner  de- 
sired by  the  defendant  constituted,  in  my  opinion,  a  good  con- 
sideration for  his  promise  to  pay  her  the  stipulated  amount.  I 
am  of  opinion,  for  this  reason,  that  there  was  a  good  legal  con- 
sideration to  support  this  agreement,  and  I  answer  the  question 
accordingly.  The  proper  order  as  to  costs  of  the  hearing  of 
this  case  will  be  that  they  abide  the  event  of  the  action. 

Williams,  J.  In  my  opinion  there  is  a  consideration  for  the 
agreement  upon  which  the  plaintiff  sues,  and  it  is  binding  upon 
the  defendant  as  long  as  the  plaintiff  observes  her  undertaking, 
necessarily  implied  in  the  agreement,  that  she  will  conduct  her- 
self with  sobriety,  and  in  a  respectable,  orderly,  and  virtuous 
manner.  The  plaintiff  signs  this  agreement  and  she  is  bound 
by  it,  and  the  penalty  upon  her,  if  she  fails  to  observe  her 
undertaking,  is  that,  immediately  she  does  so  fail,  all  benefit  to 
her  under  the  agreement  ceases.  The  defendant's  promise  to 
pay  her  the  ^6  per  month  is  stated  in  the  agreement  itself  to 
be  made  "  in  consideration  of  the  premises,"  and  one  of  those 
premises  is  the  plaintiff's  undertaking  to  conduct  herself  with 
sobriety,  and  in  a  respectable,  orderly,  and  virtuous  manner. 
Then,  it  is  said,  this  undertaking  of  hers  is  nothing,  as  it  only 
amounts  to  an  undertaking  by  her  to  do  that  which  she  was 
under  a  legal  obligation  to  do.  From  this  proposition  I  dissent. 
She  was  under  no  legal  obligation  to  the  defendant,  or  to  any 
one,  not  to  get  drunk  in  her  own  or  any  friend's  house.  She 
was  under  no  legal  obligation  to  the  defendant,  or  to  any  one, 
not  to  consort  with  persons,  male  or  female,  of  bad  moral  char- 
acter. She  was  under  no  legal  obligation  to  the  defendant,  or 
to  any  one,  not  to  allow  a  paramour  to  have  sexual  connection 
with  her.  She  was  entitled  in  these  and  other  respects  to  pur- 
sue her  own  course  of  conduct.  Now,  turning  to  the  facts  as 
gathered  from  the  agreement  and  the  evidence,  it  appears  that 
the  defendant  had  obtained  a  divorce  from  the  plaintiff,  and 
that  the  issue  of  their  marriage  had  been  five  young  children, 
all  living  at  the  time  the  agreement  was  made.  It  is  true,  and 
it  is  most  important  to  bear  in  mind,  that  with  the  dissolution 
of  the  marriage  her  conjugal  obligations  to  the  defendant 
ceased.  It  was,  perhaps,  by  reason  of  this  consequence  that 
the  defendant  entered  into  this  agreement  with  the  plaintiff  and 
procured  her  to  enter  into  it  with  him.  It  may  have  been,  and 
probably  was,  of  some  moment  to  the  defendant  to  hold  out  a 
substantial  inducement  to  the  plaintiff  to  agree  to  conduct  her- 
self, and  to  conduct  herself  in  the  manner  stipulated  by  himself. 


372  CARLILL   V.    CARBOLIC    SMOKE    BALL    CO.        [cHAP.  i. 

She  had  been  his  wife,  she  was  so  no  longer,  but  she  still  re- 
mained the  mother  of  his  five  young  children.  Remaining 
under  no  conjugal  obligations  to  him,  he  probably  deemed  it 
advantao-eous  and  desirable  that  she,  who  remained  the  mother 
of  his  children,  should  conduct  herself  in  such  a  way  as  not  to 
bring  discredit  upon  her  offspring.  In  effect  he  says  to  her  : 
"  If  you,  who  now  owe  me  no  duty  as  a  wife,  will  agree  to  my 
stipulation,  I  will,  so  long  as  you  observe  that  stipulation,  pay 
you  ^6  per  month."  Thereupon  she  signifies  her  agreement 
and  her  assent  to  observe  that  stipulation  by  signing  the  agree 
ment.  The  case  of  White  v.  Bluett'  is,  in  my  opinion,  not  an 
authority  against  the  view  I  have  taken.  In  that  case,  Pol- 
lock, C.B.,  came  to  the  conclusion  that  the  agreement  set  up 
by  the  son  was  nudum  pactum,  and  so  no  answer  to  the  father's 
cause  of  action,  upon  the  express  ground  that  the  son  had  no 
right  to  complain  of  the  father's  distribution  of  the  property  ; 
for  the  father  might  make  what  distribution  of  his  property  he 
liked,  and  the  son's  abstaining  from  doing  what  he  had  no 
right  to  do  could  be  no  consideration. 

My  answer  to  the  question  stated  is  that   there  is  sufficient 
consideration  to  support  the  agreement  sued  on. 

Lyons  6^  Turner  for  the  plaintiff. 

Connelly  &'  Thatchell  for  the  defendant. 


CARLILL  V.  CARBOLIC   SMOKE    BALL   COMPANY. 

In  the  Court  of  Appeal,  December  6,  7,  1892. 
[Reported  in  Law  Reports,  i  Queen's  Bench  (1893)  256.  J 

Appeal  from  a  decision  of  Hawkins,  J.^ 

The  defendants,  who  were  the  proprietors  and  vendors  of  a 
medical  preparation  called  "The  Carbolic  Smoke  Ball,"  in- 
serted in  the  Pall  Mall  Gazette  of  November  13th,  1891,  and  in 
other  newspapers,  the  following  advertisement  : 

"  ;;^ioo  reward  will  be  paid  by  the  Carbolic  Smoke  Ball  Com- 
pany to  any  person  who  contracts  the  increasing  epidemic  influ- 
enza, colds,  or  any  disease  caused  by  taking  cold,  after  having 
used  the  ball  three  times  daily  for  two  weeks  according  to  the 
printed  directions  supplied  with  each  ball.  ^^looo  is  deposited 
with  the  Alliance  Bank,  Regent  Street,  showing  our  sincerity 
in  the  matter. 

»  23  L.  J.  Exch.,  p.  36.  »  [1892]  2  Q.  B.  484. 


SEC.  Iir.]        CARLILL  V.    CARBOLIC   SMOKE    BALL   CO.  373 

"  During  the  last  epidemic  of  influenza  many  thousand  car- 
bolic smoke  balls  were  sold  as  preventives  against  this  disease, 
and  in  no  ascertained  case  was  the  disease  contracted  by  those 
using  the  carbolic  smoke  ball. 

'"  One  carbolic  smoke  ball  will  last  a  family  several  months, 
making  it  the  cheapest  remedy  in  the  world  at  the  price,  loi-., 
post  free.  The  ball  can  be  refilled  at  a  cost  of  5^.  Address 
Carbolic  Smoke  Ball  Company,  27  Princes  Street,  Hanover 
Square,  London." 

The  plaintiff,  a  lady,  on  the  faith  of  this  advertisement, 
bought  one  of  the  balls  at  a  chemist's,  and  used  it  as  directed, 
three  times  a  day,  from  November  20th,  1891,  to  January  17th, 
1892,  when  she  was  attacked  by  influenza.  Hawkins,  J.,  held 
that  she  was  entitled  to  recover  the  ^i^ioo.  The  defendants 
appealed. 

Finlay,  Q.C.,  and  T.  Terrell  ior  the  defendants. 

Dickens,  Q.C.,  and   W.  B.  Allen  for  the  plaintiff. 

LiNDLEV,  L.J.  [The  Lord  Justice  stated  the  facts,  and  pro- 
ceeded.] 

I  come  now  to  the  last  point  which  I  think  requires  atten- 
tion— that  is,  the  consideration.'  It  has  been  argued  that  this 
is  nudum  pactuni — that  there  is  no  consideration.  We  must  apply 
to  that  argument  the  usual  legal  tests.  Let  us  see  whether 
there  is  no  advantage  to  the  defendants.  It  is  said  that  the  use 
of  the  ball  is  no  advantage  to  them,  and  that  what  benefits 
them  is  the  sale  ;  and  the  case  is  put  that  a  lot  of  these  balls 
might  be  stolen,  and  that  it  would  be  no  advantage  to  the  de- 
fendants if  the  thief  or  other  people  used  them.  The  answer 
to  that,  I  think,  is  as  follows.  It  is  quite  obvious  that  in  the 
view  of  the  advertisers  a  use  by  the  public  of  their  remedy,  if 
they  can  only  get  the  public  to  have  confidence  enough  to  use 
it,  will  react  and  produce  a  sale  which  is  directly  beneficial  to 
them.  Therefore,  the  advertisers  get  out  of  the  use  an  advan- 
tage which  is  enough  to  constitute  a  consideration. 

But  there  is  another  view.  Does  not  the  person  who  acts 
upon  this  advertisement  and  accepts  the  offer  put  himself  to 
some  inconvenience  at  the  request  of  the  defendants  .''  Is  it 
nothing  to  use  this  ball  three  times  daily  for  two  weeks  accord- 
ing to  the  directions  at  the  request  of  the  advertiser  ?  Is  that 
to  go  for  nothing  ?  It  appears  to  me  that  there  is  a  distinct 
inconvenience,  not  to  say  a  detriment,  to  any  person  who  so 
uses  the  smoke  ball.  I  am  of  opinion,  therefore,  that  there  is 
ample  consideration  for  the  promise. 

We  were  pressed  upon  this  point  with  the  case  of  Gerhard  v, 

'  Only  so  much  of  the  opinions  is  given  as  relates  to  this  question. — Ed. 


374  CARLILL   V.    CARBOLIC   SMOKE   BALL   CO.        [CHAP.  I. 

Bates,'  which  was  the  case  of  a  promoter  of  companies  who  had 
promised  the  bearers  of  share  warrants  that  they  should  have 
dividends  for  so  many  years,  and  the  promise  as  alleged  was 
held  not  to  show  any  consideration.  Lord  Campbell's  judg- 
ment when  you  come  to  examine  it  is  open  to  the  explanation, 
that  the  real  point  in  that  case  was  that  the  promise,  if  any, 
was  to  the  original  bearer  and  not  to  the  plaintiff,  and  that  as 
the  plaintiff  was  not  suing  in  the  name  of  the  original  bearer 
there  was  no  contract  with  him.  Then  Lord  Campbell  goes  on 
to  enforce  that  view  by  showing  that  there  was  no  consideration 
shown  for  the  promise  to  him.  I  cannot  help  thinking  that 
Lord  Campbell's  observations  would  have  been  very  different 
if  the  plaintiff  in  that  action  had  been  an  original  bearer,  or  if 
the  declaration  had  gone  on  to  show  what  a  socie'te  anonytne  was, 
and  had  alleged  the  promise  to  have  been,  not  only  to  the  first 
bearer,  but  to  anybody  who  should  become  the  bearer.  There 
was  no  such  allegation,  and  the  Court  said,  in  the  absence  of 
such  allegation,  they  did  not  know  (judicially,  of  course)  what 
a  socie'te  anonyme  was,  and,  therefore,  there  was  no  consideration. 
But  in  the  present  case,  for  the  reasons  I  have  given,  I  cannot 
see  the  slightest  difficulty  in  coming  to  the  conclusion  that  there 
is  consideration. 

It  appears  to  me,  therefore,  that  the  defendants  must  perform 
their  promise,  and  if  they  have  been  so  unwary  as  to  expose 
themselves  to  a  great  many  actions,  so  much  the  worse  for  them. 

BowEN,  L.J.     I  am  of  the  same  opinion. 

A  further  argument  for  the  defendants  was  that  this  was  a 
nudum  pactii7)i — that  there  was  no  consideration  for  the  promise 
— that  taking  the  influenza  was  only  a  condition,  and  that  the 
using  the  smoke  ball  was  only  a  condition,  and  that  there  w^as 
no  consideration  at  all — in  fact,  that  there  was  no  request,  ex- 
press or  implied,  to  use  the  smoke  ball.  Now  I  will  not  enter 
into  an  elaborate  discussion  upon  the  law  as  to  requests  in  this 
kind  of  contracts.  I  will  simply  refer  to  Victors  v.  Davies^  and 
Manning's  note  to  Fisher  v.  Pyne,'  which  everybody  ought  to 
read  who  wishes  to  embark  in  this  controversy.  The  short 
answer,  to  abstain  from  academical  discussion,  is,  it  seems  to 
me,  that  there  is  here  a  request  to  use  involved  in  the  offer. 
Then  as  to  the  alleged  want  of  consideration.  The  definition 
of  "  consideration"  given  in  Selwyn's  Nisi  Prius,  8th  ed.,  p.  47, 
which  is  cited  and  adopted  by  Tindal,  C.J.,  in  the  case  of  Lay- 
thoarp  V.  Bryant,*  is  this  :  "  Any  act  of  the  plaintiff  from  which 
the   defendant   derives  a  benefit   or  advantage,   or  any  labor, 

'  2  E.  &  B.  476.  »  I  M.  &  G.  265. 

»  12  M.  &  W.  753.  ■»  3  Scott,  238,  250. 


SEC.  11^.]        CARLILL  V.   CARBOLIC   SMOKE   BALL   CO.  375 

detriment,  or  inconvenience  sustained  by  the  plaintiff,  provided 
such  act  is  performed  or  such  inconvenience  suffered  by  the 
plaintiff,  with  the  consent,  either  express  or  implied,  of  the 
defendant."  Can  it  be  said  here  that  if  the  person  who  reads 
this  advertisement  applies  thrice  daily,  for  such  time  as  may 
seem  to  him  tolerable,  the  carbolic  smoke  ball  to  his  nostrils  for 
a  whole  fortnight,  he  is  doing  nothing  at  all — that  it  is  a  mere 
act  which  is  not  to  count  toward  consideration  to  support  a 
promise  (for  the  law  does  not  require  us  to  measure  the  ade- 
quacy of  the  consideration).  Inconvenience  sustained  by  one 
party  at  the  request  of  the  other  is  enough  to  create  a  consider- 
ation. I  think,  therefore,  that  it  is  consideration  enough  that 
the  plaintiff  took  the  trouble  of  using  the  smoke  ball.  But  I 
think  also  that  the  defendants  received  a  benefit  from  this  user, 
for  the  use  of  the  smoke  ball  was  contemplated  by  the  defend- 
ants as  being  indirectly  a  benefit  to  them,  because  the  use  of 
the  smoke  balls  would  promote  their  sale. 

Then  we  were  pressed  with  Gerhard  v.  Bates.'  In  Gerhard  v. 
Bates, ^  which  arose  upon  demurrer,  the  point  upon  which  the 
action  failed  was  that  the  plaintiff  did  not  allege  that  the  prom- 
ise was  made  to  the  class  of  which  alone  the  plaintiff  was  a 
member,  and  that  therefore  there  was  no  privity  between  the 
plaintiffs  and  the  defendant.  Then  Lord  Campbell  went  on  to 
give  a  second  reason.  If  his  first  reason  was  not  enough,  and 
the  plaintiff  and  the  defendant  there  had  come  together  as  con- 
tracting parties,  and  the  only  question  was  consideration,  it 
seems  to  me  Lord  Campbell's  reasoning  would  not  have  been 
sound.  It  is  only  to  be  supported  by  reading  it  as  an  additional 
reason  for  thinking  that  they  had  not  come  into  the  relation  of 
contracting  parties  ;  but,  if  so,  the  language  was  superfluous. 
The  truth  is,  that  if  in  that  case  you  had  found  a  contract  be- 
tween the  parties  there  would  have  been  no  difficulty  about 
consideration  ;  but  you  could  not  find  such  a  contract.  Here, 
in  the  same  way,  if  you  once  make  up  your  mind  that  there  was 
a  promise  made  to  this  lady  who  is  the  plaintiff,  as  one  of  the 
public — a  promise  made  to  her  that  if  she  used  the  smoke  ball 
three  times  daily  for  a  fortnight  and  got  the  influenza,  she 
should  have  ;^ioo,  it  seems  to  me  that  her  using  the  smoke  ball 
was  sufficient  consideration.  I  cannot  picture  to  myself  tlie 
view  of  the  law  on  which  the  contrary  could  be  held  when  you 
have  once  found  who  are  the  contracting  parties.  If  I  say  to  a 
person,  "  If  you  use  such  and  such  a  medicine  for  a  week  I  will 
give  you  ^5,"  and  he  uses  it,  there  is  ample  consideration  for 
the  promise. 

»  2  E.  &  B.  476.  "  Utd. 


376 


CRISP   V.    GOLDING. 


[chap.  1. 


A.  L.  Smith,  L.J.  Lastly,  it  was  said  that  there  was  no  con- 
sideration, and  that  it  was  nudum  pactum.  There  are  two  con- 
siderations here.  One  is  the  consideration  of  the  inconvenience 
of  having  to  use  this  carbolic  smoke  ball  for  two  weeks  three 
times  a  day  ;  and  the  other  more  important  consideration  is  the 
money  gain  likely  to  accrue  to  the  defendants  by  the  enhanced 
sale  of  the  smoke  balls,  by  reason  of  the  plaintiff's  use  of  them. 
There  is  ample  consideration  to  support  this  promise.  I  have 
only  to  add  that  as  regards  the  policy  and  the  wagering  points, 
in  my  judgment,  there  is  nothing  in  either  of  them. 

Appeal  dismissed. 


CRISP   V.   GOLDING. 

In  the  Queen's  Bench,  Michaelmas  Term,  1586. 

[Reported  in  i  Leonard  296.] 

In  an  action  upon  the  case  by  Crisp  v.  Golding  the  case  was, 
that  a  feme  sole  was  tenant  for  life,  and  made  a  lease  to  the 
plaintiff  for  five  years,  to  begin  after  the  death  of  tenant  for 
life,  and  afterward,  October  i8th,  made  another  lease  to  the 
same  plaintiff  for  twenty-one  years,  to  begin  at  Michaelmas  next 
before  ;  and  declaring  upon  all  the  said  matter,  he  said,  virtute 
cujus  dimissionis — i.e.,  the  later  lease,  the  plaintiff  entered  and 
was  possessed  erast.  /est.  S.  Mich,  which  was  before  the  lease 
made  ;  and  further  declared,  that  in  consideration  that  the 
plaintiff  had  assigned  to  the  defendant  these  two  leases,  the  de- 
fendant promised,  etc.,  and  upon  twu  assumpsit  it  was  found  for 
the  plaintiff,  and  damages  taxed  ^600.  Coke  argued  for  the 
plaintiff  against  the  Solicitor-General,  who  had  taken  divers  ex- 
ceptions to  the  declaration,  i.  Where/ two  or  many  considera- 
tions are  put  in  the  declaration,  although  that  some  be  void, 
yet  if  one  be  good  the  action  well  lieth,  and  damages  shall  be 
taxed  accordingly  ;  and  here  the  consideration  that  the  plaintiff 
should  assign  totum  statum,  tituhcm,  and  interesse  suum  quod  habet 
in  terra  prcedict.  2.  Exception,  that  the  lease  in  possession  was 
made  after  Michaelmas,  i.  October  iSth,  and  the  declaration  is, 
virtute  cujus  difnissio?iis,  the  defendant  entered  crastino  Mich,  and 
then  he  was  a  disseisor,  and  could  not  assign  his  interest  and 
right,  which  was  suspended  in  the  tortious  disseisin,  and  so  it 
appeared  to  the  judges  ;  and  he  said  there  was  not  here  any 
disseisin,  although  that  the  lessee  had  entered  before  that  the 
lease  was  made  ;  for  there  was  an  agreement  and  communica- 


SEC.  uc]  CRISP   7'.    GOLDIXG.  377 

tion  before  of  such  purposed  and  intended  lease,  although  it 
was  not  as  yet  effected,  and  if  there  were  any  assent  or  agree- 
ment that  the  lessee  should  enter,  it  cannot  be  any  disseisin, 
and  here  it  appeareth  that  the  lease  had  his  commencement 
before  the  making  of  the  lease,  and  before  the  entry  ;  but  put 
case  it  be  a  disseisin,  yet  he  assigned  all  the  interest  ^uod  ipse 
tunc  habuit,  according  to  the  words  of  the  consideration,  and  he 
delivered  both  the  indentures  of  the  said  demises,  and  qiiacunque 
via  data,  be  the  assignment  good  or  void  it  is  not  material  as  to 
the  action,  for  the  consideration  is  good  enough.  Egerton 
solicitor  contrary.  In  every  action  upon  the  case,  upon  assump- 
sit, there  ought  to  be  a  consideration,  promise,  and  breach  of 
promise,  and  here  in  our  case  the  consideration  is  the  assign- 
ment of  a  lease,  which  is  to  begin  after  the  death  of  the  lessor, 
who  was  but  tenant  for  life,  which  is  merely  void,  and  that 
appeareth  upon  the  record  ;  and  as  to  the  second  part  of  the 
consideration,  and  the  assignment  of  the  second  lease,  it  appear- 
eth that  the  plaintiff  at  the  time  had  but  a  right,  for  by  his  un- 
timely entry  before  the  making  of  the  lease,  he  was  not  to  be 
said  lessee,  but  was  a  wrongdoer,  etc.,  in  19  Eliz.  in  the  King's 
Bench  this  difference  was  taken  by  the  justices  there,  and  de- 
livered openly  by  the  Lord  Chief  Justice,  i.  When  in  an  action 
upon  the  case,  upon  assumpsit,  two  considerations  or  more  are 
laid  in  the  declaration,  but  they  are  not  collateral,  but  pursuant, 
as  A.  is  indebted  to  B.  in  ^100  and  A.  promiseth  to  B.  that  in 
consideration  that  he  oweth  him  ^100,  and  in  consideration 
that  B.  shall  give  to  A.  2s.  that  he  will  pay  to  him  the  said 
^100  at.  such  a  day,  if  B.  bring  an  action  upon  the  case  upon 
this  assumpsit,  and  declares  upon  these  two  promises,  although 
the  consideration  of  the  2s.  be  not  performed,  yet  the  action 
doth  well  lie  ;  but  if  they  be  collateral  considerations,  which 
are  not  pursuant,  as  if  I,  in  consideration  that  you  are  of  my 
counsel,  and  shall  ride  with  me  to  York,  promise  to  give  to  you 
;;^2o  in  this  case  all  the  considerations  ought  to  be  proved, 
otherwise  the  action  cannot  be  maintained.  So  in  our  case  the 
considerations  are  collateral,  and  therefore  they  ought  to  be 
proved  ;  and  afterward  judgment  was  given  for  the  plaintiff. 


378  TISDALE.  [chap.  I. 

BRADBURNE  v.  ELIZABETH    BRADBURNE. 

In    the    Queen's    Bench,    Michaelmas    Term,    1589, 

[Reported  z'n  Croke,  Elizabeth,  149.] 

Assumpsit.  The  Court  held  where  there  are  divers  consider- 
ations alleged  by  the  plaintiff,  and  some  are  frivolous  and  void  ; 
yet  if  any  of  these  be  good,  the  plaintiff  shall  recover.  And  it 
was  so  adjudged. 


TISDALE. 

In  the  Queen's  Bench,   Easter  Term,  1600. 

[Reported  in  Croke,  Elizabeth,  758.] 

Assumpsit.  The  case  was  that  Tisdale,  administrator,  had  a 
judgment  against  him  for  a  debt  of  the  intestate's,  and  prom- 
ised to  the  recoverer  thereof,  in  consideration  that  he  would 
forbear  to  sue  execution  against  him  until  Octabis  Mich,  that 
he  would  pay  unto  him  the  sum  recovered  at  Michaelmas  ;  and 
at  Michaelmas  he  failed  of  payment  ;  and  after  and  before 
Octab.  Mich,  he  brought  an  assumpsit.  And  this  matter  being 
shown  to  the  Court,  it  was  moved,  first,  that  this  consideration 
is  not  sufficient  to  maintain  the  action,  for  the  forbearance  be- 
twixt Michaelmas  and  Octab.  Mich,  is  void.  The  Court  held  it 
to  be  well  enough,  for  if  part  of  the  consideration  be  good  it 
sufficeth,  and  he  ought  to  allege  performance  of  that  part  of 
the  consideration  which  is  material  and  valuable.  But  where  a 
consideration  consists  of  two  or  three  parts,  and  every  one  of 
them  is  valuable,  there  of  necessity  he  ought  to  show  perform- 
ance of  every  part  thereof.  They  also  held  that  the  considera- 
tion to  forbear  to  sue  execution  for  a  time  certain  was  good 
cause  to  ground  that  acticn.  But  it  hath  been  adjudged  that  a 
consideration  to  forbear  paiiluluin  temporis  is  void,  for  it  is  not 
certain  ;  a.nd  paululum  tempus  is  not  temporis  pars.  And  the  suit 
after  Michaelmas,  before  Octabis,  was  well,  because  the  assinnp- 
sit  was  not  performed  by  the  non-payment  at  Michaelmas.  But 
of  that  was  the  greatest  doubt. 


SEC.  Iir.J  LENERET   V.    RIVET.  379 

CRISP  v.  GAMEL. 
In  the  King's  Bench,  Hillary  Term,  1605. 

{Reported  in  Croke,  James^  12S.] 

It  was  resolved  that  where,  in  an  assumpsit,  two  considerations 
be  alleged,  the  one  good  and  sufficient,  and  the  other  idle  and 
vain,  if  that  which  is  good  be  proved,  it  sufficeth  ;  and  although 
he  fails  in  the  proof  of  the  other,  it  is  not  material,  because  it 
was  in  vain  to  allege  it,  and  it  is  as  if  it  had  not  been  alleged. 


LENERET  v.  RIVET. 

In  the  King's  Bench,  Michaelmas  Term,  1617. 

[Reported  in  Croke,  James,  503.] 

Assumpsit.  Whereas  one  Thomas  Ogle  had  acknowledged 
himself  to  be  indebted  to  the  plaintiff  in  ^10  for  divers  tres- 
passes done  to  him,  which  ^10  the  plaintiff,  at  the  defendant's 
request,  was  contented  to  accept  of  ;  that  the  defendant,  in  con- 
sideration that  the  plaintiff,  at  the  defendant's  request,  would 
acquit  and  discharge  the  said  Thomas  Ogle  of  the  said  debt, 
and  permit  him  to  carry  out  of  the  plaintiff's  house  certain 
goods  of  the  said  Thomas  Ogle's,  which  were  then  there, 
assumed  and  promised  the  plaintiff  to  pay  him  the  said  ^10  at 
such  a  day  ;  and  alleges,  in  fact,  that  he  acquitted  and  dis- 
charged the  said  Thomas  Ogle  of  the  said  ;^io  debt,  and  suf- 
fered him  to  carry  away  his  said  goods  out  of  his  house  ;  and 
that  the  defendant  had  not  paid  the  said  ^10  to  the  plaintiff 
according  to  his  promise. 

The  defendant  pleaded  non  assumpsit,  and  it  was  found  against 
him. 

It  was  now  moved  in  arrest  of  judgment  that  the  declaration 
was  not  good,  because  he  doth  not  show  how  he  acquitted  the 
said  Thomas  Ogle,  for  it  cannot  be  without  deed,  which  ought 
to  be  particularly  shewn  ;  and  although  the  consideration,  to 
suffer  him  to  carry  out  of  the  plaintiff's  house  the  said  goods, 
had  been  a  sufficient  consideration,  and  was  well  alleged  if  it 
had  been  by  itself,  yet  when  it  is  joined  with  another  consider- 
ation which  is  good,  if  it  had  been  alleged  to  have  been  per- 


38o  KING   V.    SEARS.  [CHAP.  I. 

formed,  it  not  being  well  alleged  to  hiive  been  performed,  makes 
the  whole  declaration  to  be  ill. 

The  Court  was  of  that  opinion.     Wherefore  it  was  adjudged 
for  the  defendant. 


MARY  KING,   JOHN   KING,   and  SILVANUS  KING,   Ex- 
ecutrix AND  Executors  of  the  Will  of  JAMES  KING, 
Deceased,  v.   MATTHEW  URLWIN  SEARS. 

In  the  Exchequer,  Easter  Term,  1835. 

[Reported  in  2  Cro})ipton,  Meeson  &^  Roscoe  48.] 

Assumpsit.  The  first  count  of  the  declaration  stated  that  the 
defendant,  before  and  at  the  time  of  the  making  of  the  promise 
and  undertaking  thereinafter  next  mentioned,  was  the  admin- 
istrator of  the  goods,  chattels,  and  effects  of  William  Sears,  de- 
ceased, who  died  intestate  theretofore,  to  wit,  on  August  loth, 
in  the  year  of  our  Lord  1833  ;  that  the  said  William  Sears  in  his 
lifetime,  and  at  tlie  time  of  his  death,  was  indebted  to  the  plain- 
tiffs, as  executrix  and  executors  as  aforesaid,  in  a  certain  sum 
of  money,  to  wit,  the  sum  of  ^13,  being  rent  due  and  in  arrear 
for  the  use  and  occupation  of  certain  premises  of  the  plaintiffs, 
as  executrix  and  executors  as  aforesaid,  before  then  used  and 
occupied  by  the  said  William  Sears,  by  the  sufferance  and  per- 
mission of  the  plaintiffs,  as  executrix  and  executors  as  aforesaid, 
and  at  his  request,  under  and  by  virtue  of  a  certain  demise 
thereof  theretofore  made,  and  at  and  under  a  certain  yearly 
rent,  to  wit,  the  yearly  rent  of  ^26,  payable  quarterly,  to  wit, 
on  March  25th,  June  24th,  September  29th,  and  December  25th 
in  every  year  ;  that  the  said  William  Sears  in  his  lifetime  being 
so  indebted  as  aforesaid,  he,  the  said  Williams  Sears,  deposited 
with  the  plaintiffs,  as  executrix  and  executors  as  aforesaid,  as  a 
collateral  security  for  the  said  debt,  a  certain  bill  of  exchange, 
bearing  date  of  Marcli  12th,  in  the  year  aforesaid,  drawn  by  the 
said  William  Sears  on  and  accepted  by  one  Joseph  Fabian,  for 
payment,  five  months  after  date,  to  the  drawer's  order,  of  the 
sum  of  jQid  14^.  for  value  received,  and  which  said  bill  of  ex- 
change, at  the  time  of  the  depositing  of  the  same  as  aforesaid, 
was  endorsed  by  the  said  William  Sears  ;  that  the  said  William 
Sears,  at  the  time  of  his  death,  was  in  possession  of  the  said 
demised  premises  under  and  by  virtue  of  the  said  demise,  and 
after  the  death  of  the  said  William  Sears,  and  up  to,  and  at, 
and  after  the  making  the  promise  and  undertaking  hereinafter 


SEC.  uc]  KING   V.    SEARS.  381 

next  mentioned,  Winifred,  the  widow  of  the  said  William  Sears, 
and  the  mother  of  the  defendant,  was  in  possession  of  the  said 
demised  premises,  and  was  then  possessed  of  certain  goods  and 
chattels  of  great  value,  to  wit,  of  the  value  of  ^50,  and  which 
said  goods  were  then  in  and  upon  the  said  demised  premises, 
and  were  then  liable  to  be  seized  and  distrained  for  the  said 
rent  ;  and  the  plaintiffs,  as  executrix  and  executors  as  aforesaid, 
then  intended  to  distrain  the  same  for  the  said  rent  ;  and  the 
said  Winifred  was  desirous  of  quitting  the  said  demised  prem- 
ises at  Michaelmas  then  next,  and  of  removing  the  said  goods 
and  chattels  from  and  off  the  same  (of  all  which  said  premises 
the  defendant  then  had  notice)  ;  and  thereupon  afterward,  to 
wit,  on  September  24th,  in  the  year  aforesaid,  in  consideration 
of  the  premises,  and  that  the  plaintiffs,  as  executrix  and  execu- 
tors as  aforesaid,  would  permit  the  said  Winifred  to  quit  the 
said  demised  premises  at  Michaelmas  then  next,  and  to  remove 
her  said  goods  and  chattels  from  and  off  the  said  premises,  and 
would  forbear  to  distrain  the  same  for  the  said  rent  so  due  and 
in  arrearas  aforesaid,  and  for  the  further  sum  of  ^6  los.,  being 
another  quarter's  rent,  which  would  become  due  to  the  plain- 
tiffs, as  executrix  and  executors  as  aforesaid,  under  the  said 
demise,  at  the  said  Michaelmas  then  next,  he,  the  defendant, 
undertook  and  then  faithfully  promised  the  plaintiffs,  as  execu- 
trix and  executors  as  aforesaid,  to  pay  them  one  quarter's  rent, 
being  the  sum  of  ^6  10s.,  immediately,  and  the  remainder  of 
the  said  rent  within  twelve  months  then  next,  the  said  bill  of 
exchange  being  given  up  by  the  plaintiffs  to  the  defendant. 
And  the  plaintiffs  aver  that  they,  confiding  in  the  said  promise 
and  undertaking  of  the  defendant,  did  permit  the  said  Winifred 
to  quit  the  said  demised  premises  at  the  said  Michaelmas,  and 
to  remove  her  said  goods  and  chattels  from  and  off  the  said 
demised  premises,  and  did  wholly  forbear  then,  and  always 
hitherto  have  forborne,  to  distrain  the  same  for  the  said  rent  as 
aforesaid  (whereof  the  defendant  had  notice)  ;  and,  although 
the  said  twelve  months  have  long  since  elapsed,  and  although 
the  plaintiffs,  as  executrix  and  executors  as  aforesaid,  afterward, 
and  after  the  expiration  of  the  said  twelve  months,  to  wit,  on 
October  15th,  1834,  requested  the  defendant  to  pay  the  said 
rent,  being  a  large  sum,  to  wit,  the  sum  of  ^19  loj-.,  and  also 
tendered  and  offered  to  give  up  the  said  bill  of  exchange  to  the 
defendant,  which  he  then  refused  to  accept,  yet,  etc.  Breach, 
non-payment  of  the  sum  of  ;^i9  10s. 

The  last  count  was  indebitatus  assumpsit  for  the  use  and  occu- 
pation of  a  certain  messuage  and  premises,  with  the  appurte- 
nances,  of  the  plaintiffs,   as  executrix  and  executors,   and  for 


382  KING   V.    SEARS.  [cHAP.  I, 

money  found  to  be  due  to  them  as  such,  upon  an  account  stated, 
laying  the  promise  to  the  plaintiffs,  as  executrix  and  executors 
as  aforesaid. 

General  demurrer  to  the  first  count,  and  ?ion  assumpsit  to  the 
last. 

The  grounds  stated  for  argument  in  the  margin  of  the  paper 
book  were  : 

First,  that  by  the  first  count  it  appears  that  the  bill  of  ex- 
change therein  mentioned  was  at  the  time  of  making  the  de- 
fendant's supposed  promise  overdue,  and  it  is  not  averred  to 
have  been  dishonored  ;  so  that  the  rent  of  ;^i3,  supposed  to 
have  been  in  arrear  from  William  Sears,  deceased,  appears  to 
have  been  satisfied  thereby  ;  and  the  forbearance  to  distrain 
for  that  sum  of  jQiZ^  which  forms  part  of  the  consideration 
stated  for  the  defendant's  promise,  is  therefore  insufficient. 

Secondly,  that  it  does  not  appear  on  the  first  count  that  the 
plaintiffs  had  any  right  to  distrain  for  the  quarter's  rent,  which 
is  supposed  to  have  been  becoming  due  to  them  at  Michaelmas 
mentioned  therein  ;  and  so  the  forbearance  to  distrain  for  the 
sum  of  j£6  JOS.  in  respect  thereof,  which  forms  part  of  the  con- 
sideration  stated  for  the  defendant's  promise,  is  insufiicient  to 
support  such  promise,  and  renders  the  same  of  none  effect. 

Thirdly,  that  the  consideration  expressed  in  the  first  count  as 
moving  the  defendant  to  the  promise  therein  alleged  is  not 
stated  to  have  been  at  the  defendant's  request,  as,  to  give  the 
same  any  effect,  it  ought  to  have  been. 

Fourthly,  that  it  does  not  appear,  nor  can  it  be  collected  from 
the  first  count,  whether  the  plaintiffs  seek  to  recover  against  the 
defendant,  as  administrator  of  his  late  father,  or  personally. 

Erle  in  support  of  the  demurrer.  First,  the  bill  of  exchange, 
as  appears  by  the  declaration,  was  given  as  a  collateral  security 
for  the  rent  ;  but  the  plaintiffs  do  not  state  that  any  steps  were 
taken  by  them,  on  the  bill  becoming  due,  to  obtain  payment  of 
it,  nor  do  they  aver  any  presentment,  or  show  that  it  was  dis- 
honored, which  it  was  their  duty,  as  holders,  to  have  done,  and, 
not  having  done  so,  it  amounted  to  a  satisfaction  of  the  debt 
for  which  the  bill  was  given — that  is  to  say,  the  ^13  for  rent 
due  from  William  Sears.  It  was  the  duty  of  the  plaintiffs  to 
have  shown  on  their  declaration  that  they  had  done  all  the 
acts  necessary  to  entitle  them  to  recover  on  the  bill.  [Lord 
Abinger,  C.B.  It  is  stated  in  the  declaration  to  have  been 
given  as  a  collateral  security.  The  action  is  not  brought  on 
the  bill  itself.]  It  is  submitted  that  it  was  incumbent  on  them 
to  show  that  the  bill  was  duly  presented  ;  and  if  they  fail  to  do 
so,  then  they  must  be  taken  to  have  made  the  bill  their  own, 


I 


SEC.  II<r.j  KING   1'.    SEARS.  383 

and  it  operated  as  a  satisfaction  for  the  rent  of  ^13,  and  the 
forbearance  to  distrain  for  tliat  sum,  which  formed  part  of  the 
consideration  for  the  defendant's  promise,  failed.  [Parke,  B. 
Though  the  bill  was  not  duly  presented,  that  objection  might 
have  been  waived  afterward.]  If  the  consideration  fails  to  that 
extent,  then  the  whole  promise  is  nudum  pactum.  Another  part 
of  the  consideration  stated,  is  the  agreement  not  to  distrain  the 
goods  of  the  widow  to  recover  the  sum  of  £,G  \os.  for  rent  to 
become  due  the  Michaelmas  following  ;  but,  as  the  rent  was 
not  then  due,  the  plaintiffs  could  have  no  right  to  distrain  for 
it,  and,  consequently,  that  was  no  consideration  whatever. 
[Lord  Abinger,  C.B.  Was  it  not  a  privilege  granted  to  her  to 
be  allowed  to  give  up  the  tenancy  at  Michaelmas  ?]  The  execu- 
tors could  not  compel  her  to  remain,  as  she  was  a  stranger  to 
them.  The  allegation  is  that,  in  consideration  that  the  plaintiff 
would  permit  the  widow  to  quit  the  demised  premises  at 
Michaelmas  then  next,  and  to  remove  her  goods  and  chattels 
from  the  premises,  and  would  forbear  to  distrain  for  the  said 
rent  so  due  and  in  arrear,  and  for  the  sum  of  ^^6  \os.  to  become 
due  at  Michaelmas  then  next,  the  defendant  undertook  to  pay 
the  jC^d  \os.  immediately,  and  the  remainder  within  twelve 
months,  the  bill  of  exchange  being  given  up  by  the  plaintiffs  to 
the  defendant  ;  but  the  rent  of  jQd  \os.  was  not  due,  and  they 
had  no  right  to  distrain  for  that  sum,  and  therefore  there  is  a 
failure  of  consideration.  [Parke,  B.  The  giving  up  the  note 
is  one  consideration,  and  the  forbearance  to  distrain  the  goods 
of  the  widow  on  the  premises  for  the  rent  then  due  from  the 
intestate  is  another  consideration.]  At  all  events,  the  whole  of 
the  consideration  stated  for  the  defendant's  promise  is  not 
shown,  and  therefore  the  promise  is  not  supported.  [Parke,  B. 
If  a  sufficient  consideration  remains,  it  is  enough  to  support  the 
promise  laid  in  the  declaration.  There  is  abundant  considera- 
tion.] Then  the  consideration  alleged  as  moving  the  defendant 
to  make  the  promise  is  not  stated  to  have  been  at  the  request 
of  the  defendant.  [Parke,  B.  That  would  only  be  material  in 
the  case  of  an  executed  consideration.  An  averment  of  request 
is  only  necessary  in  cases  of  executed  consideration.] 
Judgment  for  the  plaintiffs. 


384  JAMIESON  V.    RENWICK.  [cHAP.  I. 

JAMIESON  V.  RENWICK. 

In  the  Supreme  Court  of  Victoria,  April  2,  3,  1891. 

[Reported  i?t  17  Victorian  Law  Reports  124.] 

Appeal  from  County  Court.  The  plaint  was  for  money  due 
on  an  agreement  and  on  account  stated.  [The  agreement  is 
set  out  in  the  judgment.]  The  defences  were  that  the  agree- 
ment sued  on  was  not  an  actionable  one,  that  under  the  Stamps 
Act  the  agreement  required  a  stamp,  as  it  contained  a  promise 
to  pay,  and  that  the  agreement  had  been  broken  by  the  plain- 
tiff. The  learned  judge  gave  a  verdict  for  the  plaintiff  for  ^25, 
and  from  this  finding  the  defendant  appealed. 

Cussen  for  appellant. 

Macdermott  for  plaintiff  respondent. 

Higinbotham;  C.J.,  delivered  the  judgment  of  the  Court 
[HiGiNBOTHAM,  C.J.,  HooD,  and  Molesworth,  JJ.].  This  is  an 
appeal  from  the  County  Court  at  Sandhurst.  In  the  action  the 
learned  judge  gave  a  verdict  for  the  plaintiff  for  j[,2^.  The 
action  was  brought  on  a  document  purporting  to  be  an  agree- 
ment, and  it  has  been  objected  that  this  document  is  one  not 
admissible  in  evidence,  on  the  ground  that  it  does  not  bear  a 
stamp. 

The  next  ground  of  objection  is  that  this  promise  is  a  volun- 
tary one,  a  promise  to  make  a  gift  ;  that,  in  fact,  no  considera- 
tion for  making  the  promise  is  shown  by  the  instrument,  and 
that  therefore  the  agreement  is  not  one  on  which  an  action  can 
be  brought.  The  agreement  is  an  extremely  peculiar  one,  and 
not  easy  of  comprehension.  It  opens  with  a  recital  that  "  John 
Renwick,  of  his  own  free  will,  as  and  by  way  of  gift,  and  sub- 
ject to  the  proviso  and  agreement  hereinafter  contained,  doth 
agree  to  pay  to  the  said  John  Jamieson  the  annual  sum  of  ^25." 
That  promise  is  subject  to  this  proviso  :  "  Provided,  however, 
and  it  is  hereby  agreed,  that  if  the  said  John  Jamieson  shall 
reside,  attempt,  claim,  or  threaten  to  reside  in  Sandhurst  afore- 
said, or  shall  visit,  annoy,  or  interfere  in  any  way  with  the  said 
John  Renwick,  either  personally,  or  by  letter  or  messenger,  or 
shall  claim,  or  attempt  to  claim,  any  interest  or  right  to  the 
land  of  the  said  John  Renwick,  or  to  occupy  the  same,  or  shall, 
in  the  opinion  of  the  said  John  Renwick,  not  conduct  himself 
in  a  proper  and  becoming  manner  as  a  member  of  society,  then 
the  said  John  Renwick  shall  be  entitled  to  put  an  end  absolutely 
to  this  agreement,  and  shall  be  at  liberty  to  refuse  any  further 


SEC.  11^.]  JAMIESON   V.    RENWICK.  '  385 

payment  to  the  said  John  Jamieson."  This  proviso  constitutes 
a  condition  for  the  payment  of  money  by  tlie  defendant  ;  the 
fulfilment  of  the  conditions  of  the  proviso  constitutes  the  prom- 
ises made  on  his  part  b}^  the  plaintiff.  Some  of  these  promises 
-constitute  a  good  consideration  for  the  promise  of  the  defend- 
ant. The  first  condition  or  promise,  that  Jamieson  shall  not 
reside,  nor  attempt,  claim,  or  threaten  to  reside  in  Sandhurst, 
relates  to  an  act  or  acts  which  the  plaintiff  is  at  liberty  to  do  or 
not  to  do,  and  the  performance  of  which  would  not  amount  to 
any  wrong  done  to  the  defendant.  The  second  condition,  that 
the  plaintiff  shall  not  personally,  or  by  letter  or  messenger, 
claim  or  attempt  to  claim  any  interest  in  defendant's  land,  re- 
lates to  an  act  which  the  plaintiff  is  at  perfect  liberty  to  do  with- 
out committing  any  wrong.  The  plaintiff  can  advance  any 
legal  claim  which  he  is  advised  is  a  good  one.  The  promise 
not  to  visit  the  defendant  is  a  valid  promise.  To  annoy  or  in- 
terfere with  the  defendant  is  an  unlawful  act,  and  therefore  the 
promise  to  forbear  from  so  doing  is  not  one  which  constitutes  a 
good  consideration.  The  principles  guiding  the  Court  in  cases 
like  this  appear  in  Bracewell  v.  Williams.'  There  it  was  held 
that  a  promise  not  to  apply  for  costs  under  the  Bankruptcy  Act 
was  a  sufficient  consideration  to  support  a  contract  to  pay  the 
amount  of  such  costs  ;  but  that  a  promise  to  conduct  proceed- 
ings in  bankruptcy  so  as  to  injure  as  little  as  possible  the 
debtor's  credit,  was  not  a  good  consideration  to  support  a  con- 
tract. Erie,  C.J.,  says,  at  page  198  :  "  The  second  count  is, 
I  think,  also  bad  ;  it  really  amounts  to  this  :  in  consideration 
that  I  do  not  abuse  the  process  of  the  Court  for  a  purpose  other 
than  that  for  which  it  was  intended — viz.,  the  recovery  of  my 
debt,  by  using  it  as  a  means  of  exposure  of  you,  you  will  per- 
form your  promise.  The  consideration,  therefore,  is  really  the 
abstaining  from  an  abuse  of  the  process  of  the  Court."  A 
promise  that  a  person  will  not  do  what  he  lawfully  may  is  a 
good  consideration.  But  a  promise  not  to  do  what  is  unlawful 
does  not  constitute  a  good  consideration.  In  the  present  case 
we  tliink  that  there  are  sufficient  promises  constituting  a  good 
consideration  to  support  the  promise  made  by  the  defendant. 
A  promise  not  to  annoy  is  nugatory.  The  second  objection 
therefore  fails  in  our  opinion. 

In  dealing  with  the  third  objection,  that  the  judgment  was 
against  evidence,  it  is  necessary  to  look  at  the  last  condition  of 
the  proviso  :  "  Provided  that  the  said  John  Jamieson  shall,  in 
the  opinion  of  the  said  John  Renwick,  not  conduct  himself  in  a 
proper  and   becoming   manner  as  a  member  of   society,"  then 

'  L.  R.  2  C.  P.  196. 


386  PRESB.   CHURCH    OF  ALBANY  Z'.  COOPER.       [CHAP.  i; 

the  defendant  can  put  an  end  to  the  agreement.  This  raises 
the  question  as  to  whether  the  defendant  has  or  has  not  hon- 
estly, and  to  the  best  of  his  ability,  exercised  his  right  to  form 
an  opinion  of  the  nature  of  the  plaintiff's  conduct  as  a  member 
of  society.  This  is  certainly  a  very  strange  condition,  but  re- 
markable as  it  may  be,  the  parties  to  the  agreement  have  made 
it.  The  question  to  be  determined  is  not  whether  the  plaintiff 
has  conducted  himself  in  a  proper  and  becoming  manner  as  a 
member  of  society,  but  whether  he  has  done  so  in  the  opinion 
of  the  defendant.  [His  Honor  then  examined  the  evidence  at 
length,  and  proceeded.]  We  think  that  all  the  evidence  shows 
that  there  is  no  reason  for  coming  to  the  finding  that  the  de- 
fendant has  not  honestly  and  fairly  exercised  the  power  given 
to  him  by  the  agreement,  and  he  has  been  therefore  justified  in 
putting  an  end  to  the  agreement  and  refusing  to  pay  money 
under  it  to  the  plaintiff.  A  review  of  the  whole  of  the  evidence 
strengthens  the  judgment  formed  by  the  defendant  that  the 
plaintiff  did  not  conduct  himself  in  a  proper  manner  as  a  mem- 
ber of  society  in  accordance  with  the  terms  of  the  agreement. 
We  think,  therefore,  that  the  judgment  of  the  learned  judge 
was  against  the  evidence,  and  on  this  ground  a  new  trial  will 
be  allowed,  unless  the  plaintiff  within  one  week  elect  to  accept 
a  nonsuit  with  costs.  If  he  do  not  so  elect,  then  new  trial  on 
the  usual  terms,  and  appeal  allowed  with  costs. 

C?'abbe,  Cohen  &=  Kirby  for  the  plaintiff. 

Connelly  6^  Tatchell  for  the  defendant. 


THE   PRESBYTERIAN    CHURCH    OF    ALBANY,   Appel- 
LANT,  V.  THOMAS   C.  COOPER  et  al.,  as  Admin- 
istrators, ETC.,  Respondents. 

In  the  Court  of  Appeals  of  New  York,  March  5,  1889. 

{Reported  in  112  New  York  Reports  517.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme 
Court  in  the  third  judicial  department,  made  the  first  Tuesday 
of  May,  1887,  which  reversed  a  judgment  in  favor  of  plaintiff, 
entered  upon  the  report  of  a  referee,  and  ordered  a  new  trial. 
(Reported  below,  45  Hun,  453.) 

This  was  a  reference  under  the  statute  of  a  disputed  claim 
against  the  estate  of  Thomas  P.  Crook,  defendant's  intestate. 
The  claim  arose  under  a  subscription  paper,  of  which  the  fol- 
lowing is  a  copy  : 


J 


SEC    lie]        PKESB.   CHURCH    OF  ALBANY  T'.  COOPER.  387 

"  We,  the  undersigned,  hereby  severally  promise  and  agree 
to  and  with  the  trustees  of  the  First  Presbyterian  Church  in 
this  city  of  Albany,  in  consideration  of  $1  to  each  of  us  in  hand 
paid  and  the  agreements  of  each  other  in  this  contract  contained, 
to  pay  on  or  before  three  years  from  the  date  hereof  to  said 
trustees  the  sum  set  opposite  to  our  respective  names,  but  upon 
the  express  condition,  and  not  otherwise,  that  the  sum  of 
$45,000  in  the  aggregate  shall  be  subscribed  and  paid  in  for  the 
purpose  hereinafter  stated  ;  and  if  within  one  year  from  this 
date  said  sum  shall  not  be  subscribed  or  paid  in  for  such  pur- 
pose, then  this  agreement  to  be  null  and  of  no  effect.  The  pur- 
pose of  this  subscription  is  to  pay  off  the  mortgage  debt  of 
$45,000,  now  a  lien  upon  the  church  edifice  of  said  church,  and 
the  subscription  or  contribution  for  that  purpose  must  equal 
that  sum  in  the  aggregate  to  make  this  agreement  binding. 

"  Dated  May  18th,  1884." 

The  defendants'  intestate  made  two  subscriptions  to  this 
paper,  one  of  $5000  and  the  other  of  $500.  He  paid  upon  the 
subscription  $2000.     The  claim  was  for  the  balance. 

Matthew  Hale  for  appellant. 

Walter  E.   Ward  for  respondent. 

Andrews,  J.  It  is,  we  think,  an  insuperable  objection  to  the 
maintenance  of  this  action,  that  there  was  no  valid  considera- 
tion to  uphold  the  subscription  of  the  defendants'  intestate.  It 
is,  of  course,  unquestionable  that  no  action  can  be  maintained 
to  enforce  a  gratuitous  promise,  however  worthy  the  object  in- 
tended to  be  promoted.  The  performance  of  such  a  promise 
rests  wholly  on  the  will  of  the  person  making  it.  He  can  refuse 
to  perform,  and  his  legal  right  to  do  so  cannot  be  disputed, 
although  his  refusal  may  disappoint  reasonable  expectations,  or 
may  not  be  justified  in  the  forum  of  conscience.  By  the  terms 
of  the  subscription  paper  the  subscribers  promise  and  agree  to 
and  with  the  trustees  of  the  First  Presbyterian  Church  of 
Albany,  to  pay  to  said  trustees,  within  three  years  from  its  date, 
the  sums  severally  subscribed  by  them,  for  the  purpose  of  pay- 
ing off  "  the  mortgage-debt  of  $45,000  on  the  church  edifice," 
upon  the  condition  that  the  whole  sum  shall  be  subscribed  or 
paid  in  within  one  year.  It  recites  a  consideration — viz.,  "  in 
consideration  of  $1  to  each  of  us  (subscribers)  in  hand  paid  and 
the  agreement  of  each  other  in  this  contract  contained."  It 
was  shown  that  the  $1  recited  to  have  been  paid  was  not  in  fact 
paid,  and  the  fact  that  the  promise  of  each  subscriber  was  made 
by  reason  of  and  in  reliance  upon  similar  promises  by  the  others 
constitutes  no  consideration  as  between  the  corporation  for 
whose  benefit  the  promise  was  made  and  the  promisors.     The 


388  TRESB.    CHURCH    OF  ALBANY  V.  COOPER.       [CHAP.  I. 

recital  of  a  consideration  paid  does  not  preclude  the  promisor 
from  disputing  the  fact  in  a  case  like  this,  nor  does  the  state- 
ment of  a  particular  consideration  which,  on  its  face,  is  insuffi- 
cient to  support  a  promise,  give  it  any  validity,  although  the 
fact  recited  may  be  true. 

It  has  sometimes  been  supposed  that  when  several  persons 
promise  to  contribute  to  a  common  object,  desired  by  all,  the 
promise  of  each  may  be  a  good  consideration  for  the  promise 
of  others,  and  this  although  the  object  in  view  is  one  in  which 
the  promisors  have  no  pecuniary  or  legal  interest,  and  the  per- 
formance of  the  promise  by  one  of  the  promisors  would  not  in 
a  legal  sense  be  beneficial  to  the  others.  This  seems  to  have 
been  the  view  of  the  chancellor  as  expressed  in  Hamilton  Col- 
lege V.  Stewart  when  it  was  before  the  Court  of  Errors  (2  Den. 
417),  and  dicta  of  judges  will  be  found  to  the  same  effect  in 
other  cases.  (Trustees,  etc.,  v.  Stetson,  5  Pick.  508  ;  Watkins?'. 
Eames,  9  Cush.  537.)  But  the  doctrine  of  the  chancellor,  as 
we  understand,  was  overruled  when  the  Hamilton  College  Case 
came  before  this  Court  (i  N.  Y.  581),  as  have  been  also  the  dicta 
in  the  Massachusetts  cases,  by  the  Court  in  that  State,  in  the 
recent  case  of  Cottage  Street  Methodist  Episcopal  Church  v. 
Kendall  (121  Mass.  528).  The  doctrine  seems  to  us  unsound  in 
principle.  It  proceeds  on  the  assumption  that  a  stranger  both 
to  the  consideration  and  the  promise,  and  whose  only  relation 
to  the  transaction  is  that  of  donee  of  an  executory  gift,  may  sue 
to  enforce  the  payment  of  the  gratuity  for  the  reason  that  there 
has  been  a  breach  of  contract  between  the  several  promisors 
and  a  failure  to  carry  out  as  between  themselves  their  mutual 
engagement.  It  is  in  no  proper  sense  a  case  of  mutual  prom- 
ises, as  between  the  plaintiff  and  defendant. 

In  the  disposition  of  this  case  we  must,  therefore,  reject  the 
consideration  recited  in  the  subscription  paper  as  ground  fof 
supporting  the  promise  of  the  defendant's  intestate,  the  money 
consideration,  because  it  had  no  basis  in  fact,  and  the  mutual 
promise  between  the  subscribers,  because  there  is  no  privity 
of  contract  between  the  plaintiff  and  the  promisors.  Some 
consideration  must,  therefore,  be  found  other  than  that  ex- 
pressly stated  in  the  subscription  paper,  in  order  to  sustain  the 
action.  It  is  urged  that  a  consideration  may  be  found  in  the 
efforts  of  the  trustees  of  the  plaintiff  during  the  year,  and  the 
time  and  labor  expended  by  them  during  that  time  to  secure 
subscriptions  in  order  to  fulfil  the  condition  upon  which  the 
liability  of  the  subscribers  depended.  There  is  no  doubt  that 
labor  and  services,  rendered  by  one  party  at  the  request  of  an- 
other, constitute  a  good  consideration  for  a  promise  made  by 


SEC.  lie]        PRESB.    CHURCH    OP"  ALBANY  V.  COOPER.  389 

the  latter  to  the  former,  based  on  the  rendition  of  the  service. 
But  the  plaintiff  encounters  the  difficulty  that  there  is  no  evi- 
dence, express  or  implied,  on  the  face  of  the  subscription  paper, 
nor  any  evidence  outside  of  it,  that  the  corporation  or  its  trus- 
tees did  or  undertook  to  do  anything  upon  the  invitation  or 
request  of  the  subscribers.  Nor  is  there  any  evidence  that  the 
trustees  of  the  plaintiff,  as  representatives  of  the  corporation, 
in  fact  did  anything  in  their  corporate  capacity,  or  otherwise 
than  as  individuals,  interested  in  promoting  the  general  object 
in  view. 

Leaving  out  of  the  subscription  paper  the  affirmative  state- 
ment of  the  consideration  (which,  for  reasons  stated,  may  be 
rejected),  it  stands  as  a  naked  promise  of  the  subscribers  to  pay 
the  several  amounts  subscribed  by  them  for  the  purpose  of  pay- 
ing the  mortgage  on  the  church  property  upon  a  condition  prece- 
dent limiting  their  liability.  Neither  the  church  nor  the  trustees 
promise  to  do  anything,  nor  are  they  requested  to  do  anything, 
nor  can  such  a  request  be  implied.  It  was  held  in  Hamilton 
College  V.  Stewart  (i  N.  Y.  581)  that  no  such  request  could  be 
implied  from  the  terms  of  the  subscription  in  that  case,  in 
which  the  ground  for  such  an  implication  was,  to  say  the  least, 
as  strong  as  in  this  case.  It  may  be  assumed  from  the  fact  that 
the  subscriptions  were  to  be  paid  to  the  trustees  of  the  church 
for  the  purpose  of  paying  the  mortgage,  that  it  was  understood 
that  the  trustees  were  to  make  the  payment  out  of  the  moneys 
received.  But  the  duty  to  make  such  payment,  in  case  they 
accepted  the  money,  would  arise  out  of  their  duty  as  trustees. 
This  duty  would  arise  upon  the  receipt  of  the  money,  although 
they  had  no  antecedent  knowledge  of  the  subscription.  They 
did  not  assume  even  this  obligation  by  the  terms  of  the  subscrip- 
tion, and  the  fact  that  the  trustees  applied  money,  paid  on  sub- 
scriptions, upon  the  mortgage  debt,  did  not  constitute  a  con- 
sideration for  the  promise  of  the  defendant's  intestate.  We  are 
unable  to  distinguish  this  case  in  principle  from  Hamilton  Col- 
lege V.  Stewart  (i  N.  Y.  5S1).  There  is  nothing  that  can  be 
urged  to  sustain  this  subscription  that  could  not,  with  equal 
force,  have  been  urged  to  sustain  the  subscription  in  that  case. 
In  both  the  promise  was  to  the  trustees  of  the  respective  cor- 
porations. In  each  case  the  defendant  had  paid  part  of  his 
subscription  and  resisted  the  balance.  In  both,  part  of  the  sub- 
scription had  been  collected  and  applied  by  the  trustees  to  the 
purpose  specified.  In  the  Hamilton  College  Case  (which  in  that 
respect  is  unlike  the  present  one)  it  appeared  that  the  trustees 
had  incurred  expense  in  employing  agents  to  procure  subscri lo- 
tions to  make  up  the  required  amount,  and  it  was  shown,  also. 


390  PRESB.    CHURCH    OF  ALBANY  V.  COOPER.        [CHAP.   I. 

that  professors  had  been  employed  upon  the  strength  of  the 
fund  subscribed.  That  case  has  not  been  overruled,  but  has 
been  frequently  cited  with  approval  in  the  courts  of  this  and 
other  States.  The  cases  of  Barnes  v.  Ferine  (12  N.  Y.  18)  and 
Roberts  v.  Cobb  (103  id.  600)  are  not  in  conflict  with  that  de- 
cision. There  is,  we  suppose,  no  doubt  that  a  subscription  in- 
valid at  the  time  for  want  of  consideration  may  be  made  valid 
and  binding  by  a  consideration  arising  subsequently  between 
the  subscribers  and  the  church  or  corporation  for  whose  benefit 
it  is  made.  Both  of  the  cases  cited,  as  we  understand  them, 
were  supported  on  this  principle.  There  was,  as  was  held  by 
the  Court  in  each  of  these  cases,  a  subsequent  request  by  the 
subscriber  to  the  promisee  to  go  on  and  render  service  or  incur 
liabilities  on  the  faith  of  the  subscription,  which  request  was 
complied  with,  and  services  were  rendered  or  liabilities  incurred 
pursuant  thereto.  It  was  as  if  the  request  was  made  at  the 
very  time  of  the  subscription,  followed  by  performance  of  the 
request  by  the  promisor.  Allen,  J.,  in  his  opinion  in  Barnes  v. 
Ferine,  said,  "  the  request  and  promise  were,  to  every  legal 
effect,  simultaneous,"  and  he  expressly  disclaims  any  intention 
to  interfere  with  the  decision  in  the  Hamilton  College  Case. 
In  the  present  case  it  was  shown  that  individual  trustees  were 
active  in  procuring  subscriptions.  But,  as  has  been  said,  they 
acted  as  individuals,  and  not  in  their  official  capacity.  They 
were  deeply  interested,  as  was  Mr.  Crook,  in  the  success  of  the 
effort  to  pay  the  debt  on  the  church,  and  they  acted  in  unison. 
But  what  the  trustees  did  was  not  prompted  by  any  request 
from  Mr.  Crook.  They  were  co-laborers  in  promoting  a  com- 
mon object.  We  can  but  regret  that  the  intention  of  the  intes- 
tate in  respect  to  a  matter  in  which  he  was  deeply  interested, 
and  whose  interest  was  manifested  up  to  the  very  time  of  his 
death,  is  thwarted  by  the  conclusion  we  have  reached.  But  we 
think  there  is  no  alternative,  and  that  the  order  should  be 
affirmed. 

All  concur. 

Order  affirmed  and  judgment  accordingly. 


SEC.  uc]  SHERWIN   V.    FLETCHER.  39I 


WILLIAM   U.  SHERWIN  and  Others,  Trustees,  v. 
SAMUEL   W.  FLETCHER. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
May  21,  1897. 

^Reported  in  168  Massachusetts  Reports  413.] 

Contract  on  the  following  agreement. 

"  We,  the  undersigned  subscribers,  do  hereby  agree  to  pay 
the  sum  set  against  our  respective  names,  the  same  to  be  pay- 
able under  and  in  accordance  with  the  following  conditions, 
namely  : 

"  I.  The  money  by  us  subscribed  is  to  be  used  for  the  purpose 
of  erecting  a  building  in  the  town  of  Ayer,  to  be  used  for  the 
manufacture  of  boots  and  shoes. 

"  2.  The  details  regarding  the  plan  under  which  the  sub- 
scribers hereto  shall  organize  themselves,  and  upon  which  said 
building  shall  be  erected  and  rented,  shall  be  hereafter  fixed 
and  determined  by  a  majority  in  numbers  and  interest  of  the 
subscribers  hereto,  at  a  meeting  to  be  duly  called  for  that 
purpose. 

"  3.  No  subscription  hereto  shall  be  binding  until  the  sum  of 
twelve  thousand  ($12,000)  dollars  shall  have  been  raised. 

"  Samuel  W.  Fletcher.     $200." 

The  declaration  alleged  that  the  defendant  signed  the  above 
contract  (a  copy  whereof  was  annexed),  and  thereby  agreed,  in 
consideration  of  other  parties  signing  similar  agreements,  to 
pay  to  such  person  or  persons  as  should  be  determined  upon  by 
the  majority  in  numbers  and  interest  of  such  subscribers  the 
sum  of  $200,  upon  the  terms  and  conditions  therein  specified 
and  set  forth  ;  that  the  sum  of  $12,000  was  subscribed  ;  that  at 
a  meeting  of  such  subscribers  duly  notified  and  called  for  that 
purpose,  it  was  determined  by  a  majority  in  numbers  and  inter- 
est of  the  subscribers  to  organize,  and  they  did  so  organize 
under  the  name  of  the  "  Ayer  Building  Association  ;"  that  the 
plaintiffs  were  duly  chosen  trustees,  and  by  votes  of  said  asso- 
ciation were  duly  authorized  and  empowered  to  purchase  a 
tract  of  land  in  the  town  of  Ayer,  and  erect  thereon  a  building 
for  the  manufacture  of  boots  and  shoes,  and  to  collect  all  sub- 
scriptions ;  that,  relying  upon  the  promise  of  the  defendant, 
and  being  so  authorized  as  aforesaid,  they  did  purchase  a  tract 


392  SHERWIN   V.   FLETCHER.  [CHAP.  I, 

of  land  in  the  town  of  Ayer,  and  erect  thereon  a  building  for 
the  manufacture  of  boots  and  shoes,  and  demanded  of  the  de- 
fendant the  amount  of  his  said  subscription,  to  wit,  the  sum  of 
$200,  but  'the  defendant  refused  and  still  refuses  to  pay  the 
same. 

The  defendant  demurred  to  the  declaration,  assigning  as 
grounds  therefor  :  i.  That  it  did  not  appear  by  said  declaration 
and  the  contract  annexed  thereto  that  the  defendant  made  any 
promise  or  agreement  to  pay  the  plaintiffs,  or  any  promise  or 
agreement  upon  which  the  plaintiffs  were  entitled  to  recover  ; 
2.  That  the  plaintiffs  did  not  allege  in  their  declaration,  nor  did 
it  appear  by  the  contract,  that  there  was  any  sufficient  consid- 
eration for  the  defendant  entering  into  the  contract. 

The  Superior  Court  overruled  the  demurrer  ;  and  the  defend- 
ant appealed  to  this  Court. 

/.  M.  Malotiey  for  the  defendant. 

W.  H.  Atwood  for  the  plaintiffs. 

Allen,  J.  The  demurrer  to  the  declaration  was  rightly  over- 
ruled. The  written  agreement  signed  by  the  defendant  was 
virtually  a  promise  to  pay  to  such  person  or  persons  as  should 
be  fixed  at  a  meeting  of  the  subscribers.  This  promise  was  at 
the  outset  an  offer,  but  when  steps  were  taken  in  pursuance  of 
Article  2,  and  a  plan  was  fixed  and  determined  as  therein  pro- 
vided, and  the  plaintiffs  were  chosen  trustees,  they  became  the 
promisees  :  and  when  they  proceeded  to  erect  a  building  in  re- 
liance upon  the  subscriptions  of  the  defendant  and  others,  and 
before  any  withdrawal  or  retraction  by  him,  that  supplied  a 
good  consideration,  and  the  promise  became  valid  and  binding 
inlaw.  Athol  Music  Hall  Co.  z'.' Carey,  116  Mass.  471  ;  Davis  z;. 
Smith  American  Organ  Co.,  117  Mass.  456  ;  Cottage  Street 
Church  V.  Kendall,  121  Mass.  528;  Hudson  Real  Estate  Co.  v. 
Tower,  156  Mass.  82  ;  S.  C.  161  Mass.  10. 

Judgment  affirmed. 


SEC.  Ud.]  DIXON   V.   ADAMS.  393 


(d)  Performance  of,  or  promise  to  perform  a  contract  obligation  as  a 

consideration. 

REYNOLDS  v.   PINHOWE. 

In  the  Queen's  Bench,  Trinity  Term,  1595. 

[Heported  in  Croke,  Elizabeth,  429.] 

Assumpsit.  Whereas  the  defendant  had  recovered  ^5  against 
the  plaintiff,  in  consideration  of  ^4  given  him  by  the  plaintiff, 
that  tlie  defendant  assumed  to  acknowledge  satisfaction  of  tliat 
judgment  before  such  a  day,  and  that  he  had  not  done  it.'  And 
it  was  thereupon  demurred,  for  it  was  moved  that  there  was  not 
any  consideration  ;  for  it  is  no  more  than  to  give  him  part  of 
the  money  which  he  owed  him,  which  is  not  any  consideration. 
But  all  the  Court  held  it  to  be  well  enough,  for  it  is  a  benefit 
unto  him  to  have  it  without  suit  or  charge,  and  it  may  be  there 
was  error  in  the  record,  so  as  the  party  might  have  avoided  it. 
Wherefore  it  was  adjudged  for  the  plaintiff. 


DIXON  V.  ADAMS. 

In  the  Exchequer  Chamber,  Michaelmas  Term,  1596. 

{Reported  in  Croke,  Elizabeth,  538.J 

Assumpsit.  For  that  J.  S.  and  J.  D.  were  obliged  to  Adams 
in  jQa°,  and  thereupon  he  sued  J.  S.  in  the  Queen's  Bench,  in 
which  suit  Dixon  became  bail.  Adams  recovered,  and  upon  a 
scire  facias  against  Dixon  the  bail,  had  judgment  against  him  ; 
and  he,  without  other  process,  paid  the  condemnation,  and 
Adams  in  consideratione  inde  assumed  to  Dixon  to  deliver  unto 
him  the  principal  obligation,  and  a  letter  of  attorney  to  sue  it 
against  J.  D.  ;  and  for  non-performance  hereof  the  action  was 
brought  ;  and  upon  non  assumpsit  pleaded,  and  found  for  the 
plaintiff,  he  had  judgment  ;  and  thereupon  error  brought  be- 
cause it  was  not  a  sufficient  consideration.  And  so  it  was  held 
by  the  whole  Court,  for  Dixon  had  not  done  any  act  whereto 
the  law  would  not  have  compelled  him.  Wherefore  the  judg- 
ment was  reversed. 

'  Although  the  obligation  of  the  plaintiff  was  quasi-contractual,  the  case 
is  inserted  in  this  connection. — Ed. 


394  BAGGE   IK    SLADE.  [CHAP.  I. 

BAGGE  V.  SLADE. 

In  the  King's  Bench,  Easter  Term,  1614. 
[Reported  in  3  Bulstrode  162.] 

In  a  writ  of  error  to  reverse  a  judgment  given  against  him  in 
an  action  upon  the  case  for  a  promise.  In  the  town  Court  of 
Yevell,  in  comtnitatu  Sommerset.  The  error  assigned  and  in- 
sisted upon  was  this,  because  there  wanted  a  good  consideration 
to  raise  the  promise,  and  so  no  cause  of  action. 

Coke,  C.J.  The  case  was  this,  two  men  were  bound  in  a 
bond  for  the  debt  of  a  third  man  ;  the  obligation  being  for- 
feited, so  that  they  both  of  them  were  liable  to  pay  this.  The 
plaintiff  here  in  this  writ  of  error  said  to  the  other,  "  Pay  you 
all  the  debt,  and  I  will  pay  you  the  moiety  of  this  again,"  the 
which  he  paid  accordingly,  and  so  made  his  request  to  have  a 
repayment  made  to  him  of  the  moiety  according  to  his  promise, 
which  to  do  he  refused.  Upon  this  he  brought  his  action  upon 
the  case  against  the  plaintiff  upon  his  promise,  and  upon  non 
assujfipsit  pleaded,  he  had  a  verdict  and  judgment,  and  upon 
this  judgment  a  writ  of  error  was  brought.  In  this  case  and  in 
the  declaration  there  is  a  good  consideration  set  forth,  the  par- 
ty's own  contract  here  shall  bind  him,  he  hath  no  remedy  for 
the  money  paid,  but  when  this  is  paid,  here  is  good  assu?fipsit 
grounded  upon  a  good  consideration  for  repayment  of  the  moiety 
by  the  plaintiff. 

Haughton,  J.  Notwithstanding  this  contract  he  is  still  least 
in  danger  of  the  first  bond. 

Coke.  I  have  never  seen  it  otherwise,  but  when  one  draws 
money  from  another  that  this  should  be  a  good  consideration 
to  raise  a  promise. 

DoDDERiDGE,  J.  If  the  consideration  puts  the  other  to  charge, 
though  it  be  no  ways  at  all  profitable  to  him  who  made  the 
promise,  yet  this  shall  be  a  good  consideration  to  raise  a 
promise. 

Coke  agreed  with  him  herein,  also  if  a  man  be  bound  to  an- 
other by  a  bill  in  ^1000  and  he  pays  unto  him  ^500  in  discharge 
of  this  bill,  the  which  he  accepts  of  accordingly,  and  doth  upon 
this  assume  and  promise  to  deliver  up  unto  him  his  said  bill  of 
^1000,  this  ^500  is  no  satisfaction  of  the  ^1000,  but  yet  this  is 
good  and  sufficient  to  make  a  good  promise,  and  upon  a  good 
consideration,  because  he  had  paid  money,  ;^5oo,  and  he  had 
no  remedy  for  this  again. 


J 


SEC.  11^.]  WILKINSON   V.    BYERS.  395 

Another  matter  was  moved,  that  the  entry  of  the  judgment 
was  not  good,  the  same  being  in  this  manner,  Ideo  consideratum 
fuit,  adtunCy  and  ibidem  hie  ad  eandem  Curiam,  quod pradictus  querens 
recuperet. 

The  whole  Court  agreed  this  judgment  to  be  well  entered, 
and  that  the  consideration  here  is  good,  and  sufficient  to  raise 
the  promise,  and  accordingly  the  rule  of  the  Court  was  quod 
judicium  affirtnetur. 

Judgment  affirmed  per  Curiam. 


WILKINSON  V.  BYERS. 

In  the  King's  Bench,  April  24,  1834. 
[Reported  in  i  Adolp/tus  &-=■  Ellis  106.] 

Assumpsit.  The  declaration  stated  that  an  action  had  been 
commenced  and  prosecuted  in  the  Palace  Court  by  Thomas 
Rimmer,  as  the  defendant's  attorney,  in  the  name  of  the  de- 
fendant, against  the  plaintiff,  for  the  recovery  of  a  certain  sum, 
to  wit,  jQi^  los.,  alleged  to  be  due  from  plaintiff  to  defendant, 
which  action  was  depending,  and  costs  had  been  incurred 
therein,  and  thereupon,  in  consideration  that  plaintiff  would 
pay  defendant  the  said  sum  of  ^^13  10^.,  defendant  promised 
plaintiff  to  settle  with  the  said  attorney  for  the  costs  of  the 
action,  and  to  indemnify  plaintiff  and  bear  him  harmless  from 
the  same.  Averment  that  plaintiff  confiding,  etc.,  paid  defend- 
ant the  said  sum,  which  he  accepted  ;  but  that  defendant  did 
not  settle  with  the  attorney,  etc.,  by  means  and  in  consequence 
whereof  the  attorney  proceeded  with  the  action,  and  judgment 
was  signed  against  plaintiff,  and  he  was  obliged  to  pay  ^7  16^. 
for  costs  of  the  action,  and  ^3  for  costs  of  endeavoring  to  set 
the  judgment  aside,  of  which  defendant,  on,  etc.,  had  notice, 
but  that  he  did  not  nor  would  indemnify  plaintiff,  etc.  Plea, 
the  general  issue.  At  the  trial  before  Patteson,  J.,  at  the  sit- 
tings in  Middlesex  after  Trinity  Term,  1833,  it  appeared  that 
the  plaintiff  had  employed  the  defendant  (who  carried  on  busi- 
ness as  a  wood-turner)  to  do  work  for  him  ;  that  Rimmer,  as 
the  defendant's  attorney,  served  the  now  plaintiff  with  a  writ 
at  the  suit  of  the  present  defendant  ;  and  that  a  conversation 
afterward  passed  between  the  parties  at  the  plaintiff's  house, 
which  the  son  of  the  latter  stated  in  evidence  as  follows  :  "  My 
father  expressed  his  surprise  that  he  should  have  been  treated 


396  WILKINSON   V.    BYERS.  [CHAP.  I. 

in  that  peremptory  manner.  Byers  said  he  had  given  no  orders 
that  he  should  be  treated  in  that  way  ;  that  he  had  desired  the 
attorney  to  write  a  letter  demanding  payment  of  the  balance 
due,  and  that  was  all  the  instructions  he  had  given  ;  he  was 
extremely  sorry  such  conduct  had  been  pursued  by  his  attorney, 
he  having  worked  for  my  father  many  years,  and  having  no  just 
cause  of  complaint.  My  father  offered  to  pay  him  the  amount 
of  the  balance  of  the  debt,  and,  taking  into  consideration  the 
unjustifiable  nature  of  the  proceedings,  would  not  he  himself 
settle  with  his  attorney  ?  to  which  Byers  readily  assented  for 
the  reason  that  he,  Byers,  himself  would  not  pay  anything,  he 
not  having  given  instructions.  The  money  was  paid,  and  a  re- 
ceipt signed  by  Byers.  Subsequently  Byers  said  he  would  go 
immediately  to  Rimmer  and  settle  the  question  of  costs,"  An- 
other witness,  deposing  to  the  same  conversation,  stated  the 
defendant  to  have  said,  that  if  the  plaintiff  would  pay  him  the 
money,  as  he  was  in  particular  want  of  it  that  day,  he  would 
settle  the  lawyer's  expenses,  and  the  plaintiff  should  come  to 
no  trouble  about  it.  The  receipt  given  by  the  defendant  was  as 
follows  : 

"  Received,  March  30th,  1832,  of  Mr.  Wilkinson,  the  sum  of 
jQ\2>  io-S'->  balance  of  account  to  this  day. 

"  John  Byers." 

The  cost  at  this  time  amounted  tO;^i  4^.  The  defendant  re- 
fused to  pay  them  to  the  attorney,  alleging  that  he  had  not 
authorized  him  to  issue  the  writ,  upon  which  the  further  pro- 
ceedings ensued,  which  were  stated  in  the  declaration.  Upon 
these  facts  a  verdict  was  found  for  the  now  plaintiff,  with 
^10  i8j-.  damages,  but  leave  was  given  to  move  to  enter  a  non- 
suit, on  the  ground  that  the  payment  being  merely  the  discharge 
of  an  admitted  debt,  was  no  consideration  for  a  promise  by  the 
creditor  to  the  debtor.  A  rule  nisi  was  afterward  obtained  for 
entering  a  nonsuit,  or  for  reducing  the  damages  to  ^i  4^. 

James  Scarlett  and  Piatt  now  showed  cause. 

Kelly,  contra. 

LiTTLEDALE,  J.'  I  should  prefer  taking  the  case  as  it  has  just 
been  put  by  Mr.  Kelly — viz.,  that  the  sum  of  ^13  los.  was 
originally  due  from  the  plaintiff,  and  was  not  fixed  by  arrange- 
ment at  the  time  of  the  bargain  in  question.  And,  viewing  it 
so,  I  still  think  the  plaintiff  is  entitled  to  recover.  Reynolds  v. 
Pinhowe''  is  a  direct  authority  on  this  point.  There  is  indeed 
another  case,  Dixon  v.  Adams,'  in  the  same  volume  of  reports, 

'  Lord  Denman,  C.J.,  was  at  the  Privy  Council. 

«  Cro.  Eliz.  429.  3  cro.  Eliz.  538 


SEC.  ud.]  ^VILKI^•soN  v.  byers.  397 

which  may  appear  contradictory.  But  the  promise  there  was 
of  a  very  different  nature  from  that  in  the  preceding  case  and 
in  this.  There  the  obligee  of  a  bond  had  judgment  on  scire 
facias  against  the  bail,  "  and  he,  without  other  process,  paid 
the  condemnation  money  ;  and  Adams  (the  obligee),  in  considcr- 
atione  inde,  assumed  to  Dixon  (the  bail)  to  deliver  unto  him  the 
principal  obligation,  and  a  letter  of  attorney  to  sue  it  against 
J.  D."  (the  obligor)  ;  and  it  was  held  not  a  sufficient  considera- 
tion, "  for  Dixon  had  not  done  any  act  whereto  the  law  would 
not  have  compelled  him."  And  if  the  promise,  as  in  that  case, 
be  to  do  a  collateral  thing,  the  consideration  may  be  insufficient. 
But  here  the  debtor  says,  "  You  have  sued  me  for  a  debt,  and 
may  have  trouble  in  recovering  it  ;  if  you  will  forego  the  costs" 
(for  the  stipulation  as  to  paying  the  attorney  amounts  merely 
to  that)  "  I  will  pay  the  debt  now."  If  the  creditor  agreed  to 
these  terms,  he  could  not  afterward  enforce  payment  of  the 
costs.  To  do  so,  he  must  have  proceeded  to  final  judgment  ; 
but  it  would  have  been  against  his  duty  and  against  law  to  take 
that  course.  We  are  not  now  taking  into  consideration  the 
rights  of  the  attorney,  in  respect  of  his  lien  for  costs  ;  but,  look- 
ing at  the  case  as  between  the  parties,  if,  after  such  an  under- 
taking, the  plaintiff  attempted  to  go  on  with  the  action,  it  would 
be  a  breach  of  faith,  and  a  contempt,  and  the  Court  would  stay 
the  proceedings.  A  promise  which  the  Court  would  enforce, 
by  restraining  the  plaintiff  from  proceeding  contrary  to  the 
terms  entered  into,  cannot  be  treated  here  as  a  promise  made 
on  insufficient  consideration,  and  is  quite  unlike  an  undertaking 
to  do  something  merely  collateral,  as  in  the  case  of  Dixon  v. 
Adams.'     I  therefore  think  the  rule  must  be  discharged. 

Parke,  J.  I  am  of  the  same  opinion.  It  is  not  necessary  to 
consider  the  case  on  the  ground  upon  which  it  has  been  put  by 
my  Brother  Littledale,  though  as  to  that  I  do  not  mean  to  say 
that  I  differ  in  opinion.  But  the  case  may  be  decided  shortly 
on  this  ground.  If  an  action  be  brought  on  a  qiia/itiim  meruit, 
and  the  defendant  agree  to  pay  a  less  sum  than  the  demand  in 
full,  that  is  a  good  consideration  for  a  promise  by  the  plaintiff 
to  pay  his  own  costs,  and  proceed  no  further.  Payment  of  a 
less  sum  than  the  demand  has  been  held  to  be  no  satisfaction  in 
the  case  of  a  liquidated  debt  ;  but  where  the  debt  is  unliqui- 
dated, it  is  sufficient.  Now  here,  we  cannot  say  that  there  was 
originally  any  certain  demand.  A  jury,  if  asked,  could  not, 
in  my  opinion,  have  said  so.  In  the  great  majority  of  actions 
of  this  nature,  for  work,  labor,  and  goods  sold,  it  is  not  a 
specific  sum  that  forms  the  subject-matter  of   the  action,  and 

'  Cro.  Eliz.  538. 


398  SIBREE  V.   TRIPP.  [chap.  I. 

unless  that  could  have  been  shown  in  the  present  case,  there 
was  a  good  consideration  for  the  promise. 

P.\TTESON,  J.  I  am  of  the  same  opinion.  If  a  question  had 
been  raised  upon  the  record,  the  words  "  a  certain  a//eg-ed  debt" 
would  have  been  a  complete  answer  to  the  defendant's  objec- 
tion ;  and,  indeed,  this  seems  almost  admitted.  It  is  consistent 
with  the  declaration  that  there  may  have  been  a  dispute  be- 
tween the  parties  as  to  the  sum  actually  due.  The  answer 
attempted  is,  that  the  evidence  showed  the  contrary.  But, 
looking  to  the  whole  evidence,  I  think  that  is  not  so.  The  ex- 
pressions of  the  plaintiff's  son  do  not  support  that  view  of  the 
case  ;  and  it  appears  that  the  defendant  admitted  having  in- 
structed his  attorney  to  write  a  letter,  which  is  not  usually  done 
where  the  party  is  considered  able  to  pay,  unless  there  be  some 
dispute  as  to  the  sum.  I  do  not  say  that  I  differ  from  my 
Brother  Littledale  in  his  view  of  the  case,  supposing  that  there 
had  been  an  admitted  demand,  though  on  that  point  I  am  not 
quite  sure.  But  it  is  unnecessary  to  go  that  length,  because  it 
is  not  clear,  in  my  opinion,  that  there  was  a  settled  and  admitted 
demand.  There  is  no  ground  for  the  reduction  of  damages  ; 
the  defendant  to  fulfil  his  promise  to  the  plaintiff  might  have 
paid  the  ^i  4s.  to  the  attorney,  and  afterward  disputed  the 
matter  with  him.  Whether  the  Palace  Court  were  right  or  not, 
in  refusing  to  set  aside  the  judgment,  it  was  by  the  defendant's 
own  act  that  costs  exceeding  ^i  4s.  were  incurred. 

Rule  discharged. 


SIBREE  V.  TRIPP. 

In  the  Exchequer,  January   16,  1846. 

\Reported  in  15  Meeson  &^  Welsby  22.] 

Assumpsit.  The  first  count  was  upon  a  promissory  note  for 
j[^^o  ;  the  second  and  third  counts  were  for  money  had  and  re- 
ceived, and  on  an  account  stated,  the  sum  laid  in  each  of  them 
being  ;;{^iooo. 

The  defendant  pleaded  (with  non  assumpsit  and  other  pleas), 
fifthly,  as  to  the  sum  of  _;^5oo,  parcel  of  the  sum  in  the  second 
and  last  counts  mentioned,  that  the  accounts  stated  in  the  last 
count  was  stated  of  and  concerning  the  said  sum  of  ^500,  par- 
cel, etc.,  in  the  said  second  count  mentioned,  and  no  other  ; 
that,  after  the  said  causes  of  action  as  aforesaid  arose,  the  plain- 
tiff commenced,  in  the  Tolzey  Court  of  Bristol,  an  action  of 


SEC.  lu/.]  SIBREE   V.    TRIPP.  399 

debt  against  the  defendant,  for  the  recovery  of  the  said  sums  of 
^,{^500  and  ;^5oo  ;  that  the  defendant  disputed  the  said  supposed 
debt,  and  denied  that  he  owed  or  was  liable  to  pay  the  same, 
or  that  the  plaintiff  could  recover  it  ;  and  thereupon,  to  termi- 
nate the  said  dispute  and  difference,  and  the  claim  and  demand 
of  the  plaintiff  in  the  said  debt  and  action,  and  finally  to  deter- 
mine the  said  action,  the  plaintiff  and  defendant  agreed  that  the 
said  action  should  be  settled  by  the  defendant  making  and  de- 
livering to  the  plaintiff  three  promissory  notes  in  writing,  by 
which  the  defendant  should  promise  to  pay  to  the  plaintiff,  or 
order,  the  sums  of  ^125,  ^125,  and  ^50  respectively,  and  that 
the  plaintiff  should  accept  and  receive  the  same  in  full  satisfac- 
tion and  discharge  of  the  said  sums  of  ^500  and  ^^500,  and  all 
damages  and  costs,  and  that  the  plaintiff  should  discontinue  the 
said  action.  Averment,  that  the  defendant  made  and  delivered 
to  the  plaintiff  the  said  three  promissory  notes,  and  that  the 
plaintiff  accepted  the  same  in  full  satisfaction  and  discharge  of 
the  said  sums  of  ^500  and  ^500,  and  the  damages  and  costs, 
etc.      Verification. 

Replication,  that  no  such  agreement  was  ever  made  modo  et 
formd^  etc.;   on  which  issue  was  joined. 

At  the  trial,  before  Pollock,  C.B.,  at  the  London  sittings 
after  last  Trinity  Term,  it  appeared  that  this  action  was  brought 
to  recover  the  sum  of  ^50  due  upon  a  promissory  note,  and  also 
the  sum  of  ^500,  which  had,  in  August,  1843,  been  deposited 
by  the  plaintiff  with  the  defendant  for  the  purpose  of  a  specu- 
lation in  Spanish  stock.  At  the  time  of  the  deposit,  the  follow- 
ing memorandum  was  given  by  the  defendant  to  the  plaintiff  : 

"  Bristol,  August  14,  1843. 

"  Memorandum.  Mr.  Sibree  has  this  day  deposited  with  me 
^500,  on  the  sale  of  ^10,300,  ^3  per  cent  Spanish,  to  be  re- 
turned on  demand.  j^j^^-g  -p.  Tripp." 

On  this  document  being  tendered  in  evidence,  stamped  with 
an  agreement  stamp,  it  was  objected  for  the  defendant  that  it 
amounted  to  a  promissory  note,  and  required  a  stamp  accord- 
ingly. The  Lord  Chief  Baron  overruled  the  objection,  and  re- 
ceived the  paper  in  evidence. 

The  defendant  then  proved,  in  support  of  his  plea,  that  an 
action  had  been  brought  against  him  by  the  plaintiff  in  the 
Tolzey  Court  at  Bristol,  for  the  recovery  of  the  sum  of  ;^5oo  ; 
when  it  was  agreed  between  them  that  the  defendant  should 
give,  in  settlement  of  the  action,  three  promissory  notes,  two 
for;^i25  each,  and  the  third  for  jQ'^o^  pa3'^able  to  the  plaintiff 


400  SIBREE   V.   TRIFP.  [cHAP.  I. 

or  his  order,  which  he  accordingly  did  ;  and  the  following 
agreement  was  thereupon  endorsed  by  Mr.  Hinton,  the  plain- 
tiff's attorney,  upon  the  process  served  on  the  defendant  : 

"  This  action  is  settled  by  the  defendant  giving  three  promis- 
sory notes — viz.,  one  at  three  months,  ^125  ;  one  at  four 
months,  ;^i25  ;  and  one  at  twelve  months,  ^50  ;  upon  pay- 
ment of  which  several  promissory  notes,  I  undertake  to  deliver 
to  Foskett  Savery,  Esq.  [the  defendant's  attorney],  the  several 
papers  and  letters  in  my  possession  in  reference  to  this  action. 

"  January  6th,  1844.  J.  P.  Hinton." 

The  two  promissory  notes  for  ;,^  125  each  were  paid  when  due, 
but  the  third,  for  ^^50,  was  refused  payment  by  the  defendant, 
on  the  ground  of  its  not  having  been  endorsed.  The  present 
action  was  thereupon  brought. 

Upon  these  facts,  it  was  contended,  on  behalf  of  the  plaintiff, 
that  the  fifth  plea  was  not  proved  ;  for  that,  in  order  to  sup- 
port that  plea,  it  was  necessary  to  prove  not  only  that  the  notes 
were  given  in  satisfaction  of  the  debt,  but  also  that  they  had 
been  paid.  The  Lord  Chief  Baron  was  of  opinion  that  the  plea 
was  proved,  and  accordingly  directed  a  verdict  for  the  defend- 
ant on  that  issue,  giving  the  plaintiff  leave  to  move  to  enter  a 
verdict  for  him  for  j[^2oo.     In  Michaelmas  Term  last. 

^///■/obtained  a  rule  to  show  cause  why  the  verdict  should  not 
be  entered  for  the  plaintiff  accordingly,  or  why  there  should  not 
be  judgment  for  the  plaintiff  notwithstanding  the  verdict  on  the 
above  issue. 

Jervis  and  Hoggins  now  showed  cause. 

Butt  and  Taprell  in  support  of  the  rule. 

Pollock,  C.B.  The  motion  of  Butt  in  this  case  was  to  enter 
a  verdict  for  the  plaintiff  on  the  issue  joined  on  the  fifth  plea 
or  for  judgment,  notwithstanding  the  verdict  found  fur  the 
defendant  on  that  issue.  With  respect  to  the  fir^t  part  t  f  the 
motion,  it  involves  these  two  points  :  First,  whether  the  plain- 
tiff's case  was  made  out  by  the  memorandum  proved  i  1  evi- 
dence ;  and,  secondly,  if  it  was,  whether  the  answer  give:i  by 
the  defendant  was  available  to  put  an  end  to  the  plaintiff's  right 
of  action.  If  the  paper  proved  by  the  plaintiff  amounted  to  a 
promissory  note,  the  issue  ought  to  remain  as  found  for  the 
defendant.  On  consideration  of  the  authorities  cited,  it  appears 
to  me  that  the  memorandum  did  not  amount  to  a  promissory 
note.  It  is  difficult  to  lay  down  a  rule  which  shall  be  applicable 
to  all  cases  ;  but  it  seems  10  me  that  a  promissory  note,  whether 
referred  to  in  the  statute  of  Anne  or  in  the  text-books,  means 


I 


SEC.  11^.]  SIBRF.E   V.    TRIPP.  4OI 

something  which  the  parties  intejid  to  be  a  promissory  note. 
We  cannot  suppose  that  the  legislature  intended  to  prevent 
parties  from  making  written  contracts  relating  to  the  payment 
of  money  other  than  bills  and  notes  ;  and  this  appears  to  me  to 
be  merely  an  instrument  recording  the  agreement  of  the  parties 
in  respect  of  a  certain  deposit  of  money,  the  consideration  of 
which  is  stated  in  the  memorandum  itself,  and  to  be  rather  an 
agreement  than  a  promissory  note. 

The  second  question  is,  whether  the  agreement  proved  by  the 
defendant  put  an  end  to  this  action.  [His  Lordship  i*ead  the 
agreement  and  the  fifth  plea.]  The  only  question  now  is, 
whether,  as  matter  of  evidence,  this  plea  was  sustained  in  proof  ; 
and  that  turns  on  the  true  construction  of  this  endorsement  upon 
the  writ  in  the  Tolzey  Court  of  Bristol.  We  are  to  put  the  best 
construction  upon  it  that  we  can,  and  to  see  whether  the  inten- 
tion of  the  parties  was,  that  the  action  should  cease  and  the 
debt  should  be  extinguished  ;  or  whether  the  plaintiff  reserved 
to  himself  the  right,  in  case  the  promissory  notes  were  not  paid 
when  due,  of  suing  on  the  original  consideration.  It  appears 
to  me  that  the  proper  construction  is,  that  the  parties  intended 
that  the  action  should  be  settled,  and  that  plaintiff  should  have 
a  lien  on  the  papers,  in  order  to  give  the  defendant  a  greater 
reason  for  promptness  of  payment  ;  but  that  the  notes  were 
given  in  satisfaction  of  the  debt,  and  that  the  giving  of  the  notes 
alone  constituted  that  satisfaction.  The  words  of  the  agree- 
ment seem  to  import,  that,  on  the  giving  of  the  notes,  the  plain- 
tiff was  to  look  to  them  as  constituting  his  remedy,  and  the 
defendant,  to  them  as  constituting  his  liability.  If  it  were 
otherwise,  then,  on  the  slightest  laches  as  to  one  of  the  notes, 
though  all  the  others  were  paid  when  due,  and  that  one  the  da}' 
after,  the  whole  arrangement  would  be  void.  On  this  point, 
therefore,  as  matter  of  evidence,  I  am  of  opinion  that  the  plea 
was  proved. 

The  other  part  of  the  rule  is  co  enter  judgment  for  the  plain- 
tiff non  obstante  veredicto,  on  the  ground  that  the  giving  of  these 
notes  could  not  in  point  of  law  be  a  satisfaction  of  a  liquidated 
claim  for  a  larger  amount.  If  the  case  of  Cumber  v.  Wane 
were  law,  and  a  binding  authority  upon  us,  undoubtedly  we 
could  not  come  to  a  conclusion  in  favor  of  the  defendant.  That 
case  was  one  of  assumpsit  for  ^15,  to  which  the  defendant 
pleaded  that  he  gave  the  plaintiff  a  promissory  note  for  jQ^  in 
satisfaction,  and  that  the  plaintiff  received  it  in  satisfaction,  and 
it  was  held,  on  writ  of  error,  after  judgment  for  the  plaintiff, 
that  the  plea  was  ill.  It  does  not  appear  from  the  report, 
whether  the  note  was  payable  presently,  or  whether  it  was  nego- 


402  SIBREE   V.    TRIPP.  [CHAP.  I, 

liable  or  not.  The  facts  are  not  sufficiently  stated  to  make  it  a 
binding  authority.  Pratt,  C.J.,  says,  in  delivering  the  judg- 
ment of  the  Court  :  "As  the  plaintiff  had  a  good  cause  of 
action,  it  can  only  be  extinguished  by  a  satisfaction  he  agreed 
to  accept  ;  and  it  is  not  his  agreement  alone  that  is  sufficient, 
but  it  must  appear  to  the  Court  to  be  a  reasonable  satisfaction  ; 
or  at  least  the  contrary  must  not  appear,  as  it  does  in  this  case. 
If  ^^5  be,  as  is  admitted,  no  satisfaction  for;i^i5,  why  is  a  sim- 
ple contract  to  pay  ^5  a  satisfaction  for  another  simple  contract 
of  three  times  the  value  ?  In  the  case  of  a  bond,  another  has 
never  been  allowed  to  be  pleaded  in  satisfaction,  without  a  bet- 
tering of  the  plaintiff's  case,  as  by  shortening  the  time  of  pay- 
ment." From  the  latter  part  of  the  judgment  I  must,  with 
every  respect  for  the  great  authority  of  that  learned  judge,  ex- 
press my  dissent.  Undoubtedly  at  that  time  it  was  not  law  ; 
for  in  Pinnel's  Case,  5  Rep.  117,  it  was  laid  down  as  clear 
matter  of  law,  that,  in  the  case  of  a  bond  for  ;^5oo,  due  on 
January  ist,  if  the  obligee  accepted  ^100  in  satisfaction  the  day 
before,  he  was  at  liberty  to  do  so  ;  and  the  Court  never  inquired 
whether  the  satisfaction  was  reasonable  j  they  left  it  to  the  agree- 
ment of  the  parties.  However,  it  does  not  appear,  in  the  case 
of  Cumber  v.  Wane,  that  the  promissory  note  was  negotiable, 
and  therefore  that  the  plaintiff  had  any  benefit  from  it.  The 
marginal  note  of  that  case — "  Giving  a  satisfaction  for  ;^  15" — • 
was  expressly  denied  to  be  law  by  Lord  Ellenborough  in  argu- 
ment in  Heathcote  v.  Crookshanks  ;  and  BuUer,  J.,  referred  to 
a  case  of  Hardcastle  v.  Howard,  in  which  it  had  been  so  denied 
to  be  law.  But  whether  the  case  of  Cumber  z'.  Wane  have  been 
overruled  or  not,  it  appears  to  me  that  it  cannot  be  sustained  as 
an  authority  that  the  acceptance  of  a  negotiable  security  may 
not  be  a  satisfaction  of  a  claim  to  a  larger  amount.  Sard  v. 
Rhodes  is  a  distinct  authority  that  the  acceptance  of  a  negoti- 
able security  may  be  pleaded  in  satisfaction  of  a  simple  contract 
debt  for  a  like  amount,  and  the  only  question  is  whether  the 
same  doctrine  is  applicable  where  the  original  claim  was  for  a 
larger  amount.  I  think  it  is.  It  is  admitted  that  if  there  had 
been  an  acceptance  of  a  chattel  in  satisfaction  of  the  debt,  the 
Court  would  not  examine  whether  that  satisfaction  was  a  reason- 
able one,  but  merely  whether  the  parties  came  to  that  agree- 
ment ;  and  the  acceptance  of  a  negotiable  security  appears  to 
me  to  be  of  the  same  nature.  Again,  if  a  claim  is  bond  fide  dis- 
putable, Longridge  v.  Dorville,  5  B.  &  Aid.  117,'  is  an  authority 
to  show  that  the  party  may  be  barred  by  the  acceptance  of  a 
much  less  sum  in  satisfaction  of  it.  Here  the  demand  is  appar- 
'  E.  C.  L.  R.,  vol.  vii. 


SEC.  11^.]  SIBREE   V.   TRIPP.  403 

ently  for  a  liquidated  amount  ;  but  under  the  count  for  money 
had  and  received,  that  amount  may  be  very  disputable,  and  the 
plea  avers  that  in  the  former  action  the  defendant  disputed  the 
said  supposed  debt,  and  denied  that  he  owed  or  was  liable  to 
pay  it,  and  thereupon  to  terminate  the  dispute  and  difference, 
etc.,  the  plaintiff  and  defendant  agreed  that  the  action  should 
be  settled  b}'  the  giving  of  promissory  notes.  If  so,  that  was 
an  admission  by  the  plaintiff  that  the  claim  was  so  far  disputa- 
ble as  to  justify  him  in  coming  to  such  an  agreement.  Upon 
the  whole,  I  am  of  opinion  that  this  plea  is  a  good  answer  to 
the  action,  and  that  it  was  proved  at  the  trial,  and  therefore 
that  this  rule  ought  to  be  discharged. 

Parke,  B.  I  am  also  of  opinion  that  this  rule  ought  to  be 
discharged.  The  first  question  is,  whether  this  plea  was  proved. 
[His  Lordship  read  it.]  The  issue  upon  that  is,  that  no  such 
agreement  was  made  as  is  mentioned  in  the  plea — that  is,  no 
agreement  to  give  and  accept  these  promissory  notes  in  satis- 
faction of  the  debt.  The  Lord  Chief  Baron  decided  at  the  trial 
that  the  plea  was  proved,  reserving  for  the  opinion  of  the  Court 
the  question  on  the  construction  of  the  agreement.  When  Butt 
moved  for  this  rule,  I  certainly  was  strongly  impressed  with  the 
idea  that  this  agreement  amounted  only  to  a  suspension  of  the 
remedy,  and  not  to  a  satisfaction  of  the  debt  ;  but  after  hearing 
the  present  argument,  and  on  full  consideration  of  the  case, 
I  have  come  to  the  same  conclusion  as  my  Lord  Chief  Baron, 
that  the  parties  meant  it  to  be  a  final  extinguishment  of  the 
debt.  The  agreement  is  in  these  terms.  [His  Lordship  read 
it.]  As  to  the  first  part  of  it  I  have  no  doubt  ;  it  is  a  settlement 
not  only  of  the  action,  but  of  the  claim.  The  settlement  of  an 
action  primd  facie  meB.ns  the  settlement  of  the  cause  of  action. 
And  unless  the  notes  were  to  be  substituted  as  the  remedy,  the 
agreement  would  be  of  this  extraordinary  nature,  that,  if  any 
one  of  them  were  not  paid  at  maturity,  the  whole  debt  would 
become  due.  The  reasonable  construction  therefore  is,  that  it 
was  to  be  an  absolute  settlement  of  the  debt,  and  that  the  only 
future  liability  should  be  upon  these  notes.  Then  comes  the 
second  part  of  the  agreement,  on  which  my  doubt  arose — 
namely,  that  u-pon  payment  of  the  several  promissory  notes,  the 
plaintiff  undertook  to  deliver  up  the  papers  and  letters  in  his 
possession  in  reference  to  the  action.  But  1  think  that  may  well 
be  explained  in  the  manner  in  which  Jervis  explained  it,  that  it 
would  be  desirable  to  keep  some  evidence  of  the  original  con- 
sideration in  case  the  notes  were  not  paid.  Upon  the  whole  in- 
strument, therefore,  it  appears  to  me  that  the  real  meaning  of 
the  parties  was,  to  put  an  end  to  the  action,  and  for  the  larger 


404  SIBREE   V.   TRIPP.  [cHAP.  I. 

sum   claimed   in   it  to    substitute  a  smaller,   secured    by    three 
promissory  notes. 

The  next  question  is,  whether,  if  proved  in  fact,  this  is  a  good 
plea  in  law  ;  and  I  am  of  opinion  that  it  is.  I  will  consider  it 
in  the  way  proposed  by  Butt,  striking  out  the  averments  as  to 
its  being  a  disputed  debt.  It  is  clear,  if  the  claim  be  a  liqui- 
dated and  ascertained  sum,  payment  of  part  cannot  be  satisfac- 
tion of  the  whole,  although  it  may,  under  certain  circumstances, 
be  evidence  of  a  gift  of  the  remainder.  But  the  gift  of  a  thing 
of  uncertain  value  may  be  a  satisfaction  of  any  sum  due  on  a 
simple  contract.  If  the  contract  be  by  bond  or  covenant,  it  can 
be  determined  only  by  something  of  an  equal  or  higher  nature  ; 
but  upon  a  mere  simple  contract,  it  is  clear  that  the  debtor  may 
give  anything  of  inferior  value  in  satisfaction  of  the  sum  due, 
provided  it  be  not  part  of  the  sum  itself.  Littleton  thus  lays  it 
down  (§  344)  :  "  Also  in  case  of  feoffment  in  mortgage,  if  the 
feoffer  payeth  to  the  feoffee  a  horse,  or  a  cup  of  silver,  or  a  ring 
of  gold,  or  any  such  thing,  in  full  satisfaction  of  the  money, 
and  the  other  receiveth  it,  this  is  good  enough,  and  as  strong 
as  if  he  had  received  the  sum  of  money,  though  the  horse  or 
other  thing  were  not  of  the  twentieth  part  of  the  value  of  the 
sum  of  money,  because  that  the  other  hath  accepted  it  in  full 
satisfaction."  The  same  doctrine  is  laid  down  in  Pinnel's  Case. 
It  is  clear,  if  the  creditor  had  the  money  itself,  he  might  buy 
with  it  a  thing  of  however  inferior  value,  and  that  contract 
would  be  good,  so  he  may  accept  the  same  thing  in  satisfaction 
of  the  whole  sum,  and  that  contract  is  good.  In  the  case  of  a 
bond  or  contract  under  seal  it  is  different.  "  The  obligor  or 
feoffer  cannot,  at  the  time  appointed,  pay  a  lesser  sum  in  satis- 
faction of  the  whole,  because  it  is  apparent  that  a  lesser  sum  of 
money  cannot  be  a  satisfaction  of  a  greater  ;  but  if  the  obligee 
or  feoffee  do  at  the  day  receive  part,  and  thereof  make  an 
acquittance  under  his  seal  in  full  satisfaction  of  the  whole,  it  is 
sufficient,  by  reason  the  deed  amounteth  to  an  acquittance  of 
the  whole."'  Eodetn  ligamitie  quo  ligatum  est  dissolvitur.  Again, 
a  sum  of  money  payable  at  a  different  time  is  a  good  satisfaction 
of  a  larger  sum  payable  at  a  future  day.  Com.  Dig.,  Accord 
(Book  2).  In  the  present  case  (supposing  it  a  liquidated  de- 
mand) the  satisfaction  is  by  giving  a  different  thing,  not  part  of 
the  sum  itself,  having  different  properties.  It  may  be  of  equal 
value,  but  that  we  cannot  enter  into  ;  it  is  sufficient  that  the 
parties  have  so  agreed.  The  case  of  Andrew  z;.  Boughey,  Dyer, 
75^-,  is  an  authority  in  support  of  this  view.  There  the  declara- 
tion was  for  delivering  373  pounds  of  bad  wax  upon  an  asswnpsit 

'  Co.  Litt.  212*.  ■ 


SEC.  lul]  SIBREE   7'.   TRIPP.  405 

for  400  pounds  of  good  and  merchantable  wax,  stating  lialf  the 
price  to  have  been  paid  in  hand,  the  rest  to  be  paid  upon  a  day 
agreed  on.  To  this  the  defendant  pleaded  that,  before  the  time 
appointed  for  the  delivery  of  the  residue  of  the  wax,  "  the  plain- 
tiff and  defendant  did  agree  that  if  the  defendant  would  deliver 
immediately  to  the  plaintiff  one  cake  of  wax  weighing  20  pounds, 
the  defendant  would  accept  that  in  recompense,  as  well  for  the 
aforesaid  373  pounds  as  for  the  residue  which  was  to  be  deliv- 
ered ;  and  pleaded  this  executed  in  certain,  with  the  acceptance 
by  the  plaintiff  accordingly  ;"  and  this  plea  was  held  a  good 
answer.  The  Court  says  that  "  the  bar  seemed  good  enough, 
for  the  effect  and  substance  of  the  action  is  that  the  defendant 
hath  not  performed  his  bargain,  sa7.,  with  good  and  merchant- 
able wax,  according  to  his  undertaking,  but  that  it  was  cor- 
rupted and  mixed  as  above  and  deceitful  ;  for  which  the  plain- 
tiff has  received  satisfaction  and  recompense  by  the  cake,  and 
his  own  acceptance,  although  it  were  not  of  one  hundredth  part 
of  the  value  of  his  loss,  yet  by  his  own  accord  and  agreement 
this  injury  is  dispensed  with  ;  and  in  all  actions  in  which  noth- 
ing but  amends  is  to  be  recovered  in  damages,  there  a  concord 
carried  into  execution  is  a  good  plea."  It  seems  to  me  that 
this  reasoning  applies  to  the  present  plea,  because  here  a  differ- 
ent thing,  of  uncertain  value,  is  delivered  in  satisfaction  of  the 
debt. 

The  cases  of  Cumber  v.  Wane  and  Thomas  v.  Heathorn  have 
been  referred  to.  The  reasoning  of  Pratt,  C.J.,  in  the  former 
case  is  certainly  not  correct,  for  we  cannot  inquire  into  the 
reasonableness  of  the  satisfaction.  But  there  it  did  not  appear 
that  the  note  was  a  negotiable  one,  and  the  point  now  before 
the  Court  was  not  made.  In  Thomas  v.  Heathorn  it  does  not 
appear  to  have  been  a  case  of  accord  and  satisfaction  ;  although 
the  bill  accepted  by  the  defendant  was  a  negotiable  security,  it 
does  not  appear  that  it  was  given  by  way  of  accord  and  satis- 
faction. 

As  to  the  other  question,  whether  the  statement  in  this  plea, 
that  it  was  a  disputed  debt,  makes  the  plea  a  good  answer, 
I  think  that  is  very  doubtful,  because  it  does  not  state  that  it 
was  disputable  on  fair  and  reasonable  grounds.  This  question 
was  considered  in  the  case  of  Wilkinson  v.  Byers,  i  Ad.  &  E. 
106  ;'  3  Nev.  &  M.  853,  in  which  it  was  held  that,  where  an 
action  has  been  commenced  for  an  unliquidated  demand,  pay- 
ment by  the  defendant  of  an  agreed  sum  in  discharge  of  such 
demand  was  a  good  consideration  for  a  promise  by  the  plaintiff 
to  stay  proceedings  and  pay  his  own  costs.  Littledale,  J.,  there 
'  E.  C.  L.  R.,  vol.  xxviii. 


406  SIBREE   V.    TRIPP.  [CHAP.  I. 

went  further  than  the  rest  of  the  Court,  and  expressed  his  opin- 
ion, that,  even  in  the  case  of  liquidated  demand  the  same  prom- 
ise, made  in  consideration  of  the  payment  of  such  sum,  might 
be  enforced  in  an  action  of  assumpsit,  where  the  agreement  was 
such  that  the  Court  would  stay  proceedings  if  the  plaintiff 
attempted  to  go  on.  He  referred  to  a  case  of  Reynolds  v. 
Pinhowe,  Cro.  Eliz.  429,  where  a  declaration  in  assumpsit — 
"  that  whereas  the  defendant  had  recovered  jQ^  against  the 
plaintiff,  in  consideration  of  ^4  given  him  by  the  plaintiff,  the 
defendant  assumed  to  acknowledge  satisfaction  of  that  judg- 
ment before  such  a  day,  and  that  he  had  not  done  it" — was  held 
good,  on  the  ground  that  it  was  a  benefit  to  the  defendant  to 
have  the  money  without  suit  or  charge.  On  the  authority  of 
that  case  Littledale,  J.,  held  that  if  there  was  a  dispute  as  to  a 
liquidated  debt,  the  payment  and  acceptance  of  a  smaller  sum 
might  be  a  good  satisfaction.  The  rest  of  the  Court,  however, 
did  not  go  upon  that  ground,  and  therefore  I  do  not  rest  my 
judgment  upon  this  point.  But,  for  the  reasons  I  have  already 
stated,  I  think  this  plea  is  good,  and  that  there  ought  not  to  be 
judgment  for  the  plaintiff  fion  obstante  veredicto. 

With  respect  to  the  question  as  to  the  stamp,  it  is  unnecessary 
to  express  any  opinion  upon  it  ;  but  I  think  this  document  did 
not  require  a  stamp  except  as  an  agreement.  This  is  not  a  con- 
tract to  pay  money,  but  a  deposit  of  money,  and  the  identical 
monv^y  is  to  be  returned. 

Alderson,  B.  As  to  the  question  relating  to  the  stamp,  we 
must  look  at  it  as  it  arises  on  the  face  of  the  instrument  itself, 
and  I  think  it  bears  the  construction  puc  upon  it  by  my  brother 
Parke.  Then  as  to  the  main  points  in  the  case,  I  agree  in  think- 
ing that  here  the  original  debt  was  discharged  merely  by  the 
giving  of  the  promissory  notes,  and  that  the  plaintiff  was  re- 
mitted to  his  only  remaining  remedy — namely,  upon  those 
notes,  and  had  lost  his  original  right  of  suing  upon  the  original 
memorandum.  If  we  did  not  put  this  construction  upon  the 
agreement,  we  should  certainly  do  great  injustice,  because  by 
the  non-payment  of  any  one  of  the  notes  on  the  very  day  it 
became  payable,  the  whole  money  would  become  due.  That  is 
so  strong  a  circumstance  as  makes  one  hesitate  to  come  to  such 
a  conclusion,  and  the  literal  meaning  of  the  agreement  does  not 
require  us  to  do  so  ;  for  the  latter  words  of  it  may  very  well  be 
consistent  with  the  construction  we  put  upon  it  ;  the  papers 
being  retained,  in  order,  if  any  doubt  arose  as  to  the  sufficiency 
of  the  consideration  when  the  notes  were  put  in  suit,  to  show 
its  nature  in  order  to  enforce  them  with  greater  certainty.  I 
think,  therefore,  that  the  plea  is  proved.     Then  the  next  ques- 


SEC.  Ud.]  FOAKES  V.   BEER.  407 

tion  is,  Is  the  plea  a  good  one  ?  I  consider  this  as  a  liquidated 
demand.  Then  is  tliere  a  good  answer  to  it  ?  The  suggested 
answer  is  that  the  defendant  gave  certain  promissory  notes  of  a 
smaller  amount,  and  the  plaintiff  accepted  them  in  satisfaction 
and  discharge  of  that  demand.  It  is  undoubtedly  true  that  pay- 
ment of  a  portion  of  a  liquidated  demand,  in  the  same  manner 
as  the  whole  liquidated  demand  ought  to-  be  paid,  is  payment 
only  in  part  ;  it  is  not  one  bargain,  but  two — namely,  payment 
of  part,  and  an  agreement,  without  consideration  to  give  up  the 
residue.  The  Courts  might  very  well  have  held  the  contrary, 
and  have  left  the  matter  to  the  agreement  of  the  parties  ;  but 
undoubtedly  the  law  is  so  settled.  But  if  you  substitute  for  a 
sum  of  money  a  piece  of  paper,  or  a  stick  of  sealing-wa.x,  it  is 
different,  and  the  bargain  may  be  carried  out  in  its  full  integ- 
rity. A  man  may  give  in  satisfaction  of  a  debt  of  ;^  100  a  horse 
of  the  value  of  ^^5,  but  not  ^5.  Again,  if  the  time  or  place  of 
payment  be  different,  the  one  sum  may  be  a  satisfaction  of  the 
other.  Let  us,  then,  apply  these  principles  to  the  present  case. 
If  for  money  you  give  a  negotiable  security,  you  pay  it  in  a 
different  way.  The  security  may  be  worth  more  or  less  ;  it  is 
of  uncertain  value.  That  is  a  case  falling  within  the  rule  of 
law  I  have  referred  to.  But  here  there  is  the  further  circum- 
stance, that  the  payment  was  in  discharge  of  a  debt  then  under 
litigation,  by  means  of  a  negotiable  security,  which  takes  away 
that  litigation.  On  these  grounds  I  am  of  opinion  that  this 
plea  is  good.' 

Rule  discharged. 


JOHN    WESTON    FOAKES,  Appellant,  v.    JULIA    BEER, 

Respondent. 

In  the  House  of  Lords,  May  16,  1884. 
[Reported  m  Law  Reports,  9  Appeal  Cases  605.] 

Appeal  from  an  order  of  the  Court  of  Appeal.'' 

On  August  nth,  1875,  the  respondent  recovered  judgment 
against  the  appellant  for;^2077  17.^.  2d.  for  debt  and ;^  13  is.  lod. 
for  costs.  On  December  21st,  1876,  a  memorandum  of  agree- 
ment was  made  and  signed  by  the  appellant  and  respondent  in 
the  following  terms  : 

"  Whereas  the  said  John  Weston  Foakes  is  indebted  to  the 
said  Julia  Beer,  and  she  has  obtained  a  judgment  in  Her  Maj- 
esty's High  Court  of  Justice,  Exchequer  Division,  for  the  sum 

'  The  opinion  of  Piatt,  B.,  has  been  omitted. — Ed.        »  ii  Q.  B.  D.  221. 


408  FOAKES   V.   BEER.  [CHAP,  I. 

of  ^2090  19J.  And  whereas  the  said  John  Weston  Foakes  has 
requested  the  said  Julia  Beer  to  give  him  time  in  which  to  pay- 
such  judgment,  which  she  has  agreed  to  do  on  the  following 
conditions.  Now  this  agreement  witnesseth  that  in  considera- 
tion of  the  said  John  Weston  Foakes  paying  to  the  said  Julia 
Beer  on  the  signing  of  this  agreement  the  sum  of  ^500,  the  re- 
ceipt whereof  she  doth  hereby  acknowledge  in  part  satisfaction 
of  the  said  judgment  debt  of  ^2090  19^-.,  and  on  condition  of 
his  paying  to  her  or  her  executors,  administrators,  assigns  or 
nominee  the  sum  of  ^150  on  July  ist  and  January  ist  or  within 
one  calendar  month  after  each  of  the  said  days  respectively  in 
every  year  until  the  whole  of  the  said  sum  of  ^^2090  \()s.  shall 
have  been  fully  paid  and  satisfied,  the  first  of  such  payments  to 
be  made  on  July  ist  next,  then  she  the  said  Julia  Beer  hereby 
undertakes  and  agrees  that  she,  her  executors,  administrators 
or  assigns,  will  not  take  any  proceedings  whatever  on  the  said 
judgment.'" 

The  respondent  having  in  June,  1882,  taken  out  a  summons 
for  leave  to  proceed  on  the  judgment,  an  issue  was  directed  to 
be  tried  between  the  respondent  as  plaintiff  and  the  appellant 
as  defendant  whether  any  and  what  amount  was  on  July  ist, 
1882,  due  upon  the  judgment. 

At  the  trial  of  the  issue  before  Cave,  J.,  it  was  proved  that 
the  whole  sum  of  ^,^2090  19^.  had  been  paid  by  instalments,  but 
the  respondent  claimed  interest.  The  jury  under  his  Lordship's 
direction  found  that  the  appellant  had  paid  all  the  sums  which 
by  the  agreement  of  December  21st,  1876,  he  undertook  to  pay 
and  within  the  times  therein  specified.  Cave,  J.,  was  of  opinion 
that  whether  the  judgment  was  satisfied  or  not,  the  respondent 
was,  by  reason  of  the  agreement,  not  entitled  to  issue  execution 
for  any  sum  on  the  judgment. 

The  Queen's  Bench  Division  (Watkin  Williams  and  Mathew, 
JJ.)  discharged  an  order  for  a  new  trial  on  the  ground  of  mis- 
direction. 

The  Court  of  Appeal  (Brett,  M.R.,  Lindley,  and  Fry,  L.JJ.) 
reversed  that  decision  and  entered  judgment  for  the  respondent 
for  the  interest  due,  with  costs.'' 

W.  H.  Holl,  Q.C.,  for  the  appellant. 

Bompas,  Q.C.  {Gaske//  with,  him)  for  the  respondent. 

Earl  of  Selborne  L.C.  My  Lords,  upon  the  construction  of 
the  agreement  of  December  21st,  1876,  I  cannot  differ  from  the 
conclusion  in  which  both  the  Courts  below  were  agreed.  If 
the  operative  part  could  properly  be  controlled  by  the  recitals, 
I  think  there  would  be  much  reason  to  say  that  the  only  thing 
'  See  supra,  p.  393,  n.  i.  — Ed.  *  ii  Q.  B.  D.  221. 


SEC.  11^.]  FOAKES   V.    BEER.  409 

contemplated  by  the  recitals  was  giving  time  for  payment,  with- 
out any  relinquishment,  on  the  part  of  the  judgment  creditor, 
of  any  portion  of  the  amount  recoverable  (whether  for  principal 
or  for  interest)  under  the  judgment.  But  the  agreement  of  the 
judgment  creditor,  which  follows  the  recitals,  is  that  she  "  will 
not  take  any  proceedings  whatever  on  the  judgment,"  if  a  cer- 
tain condition  is  fulfilled.  What  is  that  condition  ?  Payment 
of  the  sum  of  ^150  in  every  half  year,  "  until  the  whole  of  the 
said  sum  of  ^2090  i()s."  (the  aggregate  amount  of  the  principal 
debt  and  costs,  for  which  judgment  had  been  entered)  "  shall 
have  been  fully  paid  and  satisfied."  A  particular  "  sum"  is 
here  mentioned,  which  does  not  include  the  interest  then  due, 
or  future  interest.  Whatever  was  meant  to  be  payable  at  all, 
under  this  agreement,  was  clearly  to  be  payable  by  half-yearly 
instalments  of  ;^i5o  each  ;  any  other  construction  must  neces- 
sarily make  the  conditional  promise  nugatory.  But  fo  say  that 
the  half-yearly  payments  were  to  continue  till  the  whole  sum 
of;^209o  i^s.,  "and  interest  thereon,"  should  have  been  fully 
paid  and  satisfied,  would  be  to  introduce  very  important  words 
into  the  agreement,  which  are  not  there,  and  of  which  I  cannot 
say  that  they  are  necessarily  implied.  Although,  therefore, 
I  may  (as  indeed  I  do)  very  much  doubt  whether  the  effect  of 
the  agreement,  as  a  conditional  waiver  of  the  interest  to  which 
she  was  by  law  entitled  under  the  judgment,  was  really  present 
to  the  mind  of  the  judgment  creditor,  still  I  cannot  deny  that 
it  might  have  that  effect,  if  capable  of  being  legally  enforced. 

But  the  question  remains,  whether  the  agreement  is  capable 
of  being  legally  enforced.  Not  being  under  seal,  it  cannot  be 
legally  enforced  against  the  respondent,  unless  she  received 
consideration  for  it  from  the  appellant,  or  unless,  though  with- 
out consideration,  it  operates  by  way  of  accord  and  satisfaction, 
so  as  to  extinguish  the  claim  for  interest.  What  is  the  consid- 
eration ?  On  the  face  of  the  agreement  none  is  expressed,  ex- 
cept a  present  payment  of  ^500,  on  account  and  in  part  of  the 
larger  debt  then  due  and  payable  by  law  under  the  judgment. 
The  appellant  did  not  contract  to  pay  the  future  instalments  of 
^^150  each,  at  the  times  therein  mentioned  ;  much  less  did  he 
give  any  new  security,  in  the  shape  of  negotiable  paper,  or  in 
any  other  form.  The  promise  de  fiituro  was  only  that  of  the 
respondent,  that  if  the  half-yearly  payments  of  ^150  each  were 
regularly  paid,  she  would  "take  no  proceedings  whatever  on 
the  judgment."  No  doubt  if  the  appellant  had  been  under  no 
antecedent  obligation  to  pay  the  whole  debt,  his  fulfilment  of 
the  condition  might  have  imported  some  consideration  on  his 
part  for  that  promise.     But  he  was  under  that  antecedent  obli- 


4IO  FOAKES   V.    BEER.  [CHAP.  I. 

gation  ;  and  payment  at  those  deferred  dates,  by  the  forbear- 
ance and  indulgence  of  the  creditor,  of  the  residue  of  the  prin- 
cipal debt  and  costs,  could  not  (in  my  opinion)  be  a  consider- 
ation for  the  relinquishment  of  interest  and  discharge  of  the 
judgment,  unless  the  payment  of  the  ;^S°°>  ^t  the  time  of  sign- 
ing the  agreement,  was  such  a  consideration.  As  to  accord  and 
satisfaction,  in  point  of  fact  there  could  be  no  complete  satis- 
faction, so  long  as  any  future  instalment  remained  payable  ; 
and  I  do  not  see  how  any  mere  payments  on  account  could  oper- 
ate in  law  as  a  satisfaction  ad  interim,  conditionally  upon  other 
payments  being  afterward  duly  made,  unless  there  was  a  con- 
sideration sufficient  to  support  the  agreement  while  still  unexe- 
cuted. Nor  was  anything,  in  fact,  done  by  the  respondent  in 
this  case,  on  the  receipt  of  the  last  payment,  which  could  be 
tantamount  to  an  acquittance,  if  the  agreement  did  not  pre- 
viously bind  her. 

The  question,  therefore,  is  nakedly  raised  by  this  appeal, 
whether  your  Lordships  are  now  prepared,  not  only  to  overrule, 
as  contrary  to  law,  the  doctrine  stated  by  Sir  Edward  Coke  to 
have  been  laid  down  by  all  the  judges  of  the  Common  Pleas  in 
Pinnel's  Case'  in  1602,  and  repeated  in  his  note  to  Littleton, 
§  344,^  but  to  treat  a  prospective  agreement,  not  under  seal,  for 
satisfaction  of  a  debt,  by  a  series  of  payments  on  account  to  a 
total  amount  less  than  the  whole  debt,  as  binding  in  law,  pro- 
vided those  payments  are  regularly  made  ;  the  case  not  being 
one  of  a  composition  with  a  common  debtor,  agreed  to,  inter  se, 
by  several  creditors.  I  prefer  so  to  state  the  question  instead 
of  treating  it  (as  it  was  put  at  the  Bar)  as  depending  on  the 
authority  of  the  case  of  Cumber  v.  Wane,^  decided  in  17 18.  It 
may  well  be  that  distinctions,  which  in  later  cases  have  been 
held  sufficient  to  exclude  the  application  of  that  doctrine,  ex- 
isted and  were  improperly  disregarded  in  Cumber  v.  Wane  ;* 
and  yet  that  the  doctrine  itself  may  be  law,  rightly  recognized 
in  Cumber  v.  Wane,^  and  not  really  contradicted  by  any  later 
authorities.  And  this  appears  to  me  to  be  the  true  state  of  the 
case..  The  doctrine  itself,  as  laid  down  by  Sir  Edward  Coke, 
may  have  been  criticised,  as  questionable  in  principle,  by  some 
persons  whose  opinions  are  entitled  to  respect,  but  it  has  never 
been  judicially  overruled  ;  on  the  contrary,  I  think  it  has 
always,  since  the  sixteenth  century,  been  accepted  as  law.  If 
so,  I  cannot  think  that  your  Lordships  would  do  right,  if  you 
were  now  to  reverse,  as  erroneous,  a  judgment  of  the  Court  of 

■  5  Rep.  117a.  *  /did. 

»  Co.  Litt.  212^.  *  /did. 

3  I  Sm.  L.  C.  8th  ed.  357. 


I 


SEC.  Ud.]  FOAKES   V.    BEER.  4I  I 

Appeal,  proceeding  upon  a  doctrine  which  has  been  accepted 
as  part  of  the  law  of  England  for  two  hundred  and  eighty  years. 

The  doctrine,  as  stated  in  Pinnel's  Case,'  is  "  that  payment 
of  a  lesser  sum  on  the  day"  (it  would  of  course  be  the  same 
after  the  day),  "  in  satisfaction  of  a  greater,  cannot  be  any  sat- 
isfaction for  the  whole,  because  it  appears  to  the  judges,  that 
by  no  possibility  a  lesser  sum  can  be  a  satisfaction  to  the  plain- 
tiff for  a  greater  sum."  As  stated  in  Coke  Littleton,  212;^,  it  is, 
"  where  the  condition  is  for  payment  of  ;^2o,  the  obligor  or 
feoffor  cannot  at  the  time  appointed  pay  a  lesser  sum  in  satis- 
faction of  the  whole,  because  it  is  apparent  that  a  lesser  sum  of 
money  cannot  be  a  satisfaction  of  a  greater  ;"  adding  (what  is 
beyond  controversy)  that  an  acquittance  under  seal,  in  full 
satisfaction  of  the  whole,  would  (under  like  circumstances)  be 
valid  and  binding. 

The  distinction  between  the  effect  of  a  deed  under  seal,  and 
that  of  an  agreement  by  parol,  or  by  writing  not  under  seal, 
may  seem  arbitrary,  but  it  is  established  in  our  law  ;  nor  is  it 
really  unreasonable  or  practically  inconvenient  that  the  law 
should  require  particular  solemnities  to  give  to  a  gratuitous 
contract  the  force  of  a  binding  obligation.  If  the  question  be 
(as,  in  the  actual  state  of  the  law,  I  think  it  is),  whether  con- 
sideration is,  or  is  not,  given  in  a  case  of  this  kind,  by  the 
debtor  who  pays  down  part  of  the  debt  presently  due  from  him, 
for  a  promise  by  the  creditor  to  relinquish,  after  certain  further 
payments  on  account,  the  residue  of  the  debt,  I  cannot  say  that 
I  think  consideration  is  given,  in  the  sense  in  which  1  have 
always  understood  that  word  as  used  in  our  law.  It  might  be 
(and  indeed  I  think  it  would  be)  an  improvement  in  our  law,  if 
a  release  or  acquittance  of  the  whole  debt,  on  payment  of  any 
sum  which  the  creditor  might  be  content  to  receive  by  way  of 
accord  and  satisfaction  (though  less  than  the  whole),  were  held 
to  be,  generally,  binding,  though  not  under  seal  ;  nor  should  I 
be  unwilling  to  see  equal  force  given  to  a  prospective  agree- 
ment, like  the  present,  in  writing  though  not  under  seal  ;  but 
T  think  it  impossible,  without  refinements  v/hich  practically  alter 
the  sense  of  the  word,  to  treat  such  a  release  or  acquittance  as 
supported  by  any  new  consideration  proceeding  from  the 
debtor.  All  the  authorities  subsequent  to  Cumber  v.  Wayne, ^ 
which  were  relied  upon  by  the  appellant  at  your  Lordships'  Bar 
(such  as  Sibree  v.  Tripp, ^  Curlewis  71.  Clark,*  and  Goddard  v. 
O'Brien^)  have  proceeded  upon  the  distinction,  that,  by  giving 

'  5  Rep.  117a.  *  3  Ex.  375. 

»  1  Sm.  L.  C.  8th  ed.  366.  *  9  Q-  B.  D.  37. 

3  15  M.  &  W.  23. 


412  FOAKES   V.    BEER.  [CHAP.  I, 

negotiable  paper  or  otherwise,  there  had  been  some  new  con- 
sideration for  a  new  agreement,  distinct  from  mere  money  pay- 
ments in  or  toward  discharge  of  the  original  liability.  I  think 
it  unnecessary  to  go  through  those  cases,  or  to  examine  the 
particular  grounds  on  which  each  of  them  was  decided.  There 
are  no  such  facts  in  the  case  now  before  your  Lordships.  What 
is  called  "  any  benefit,  or  even  any  legal  possibility  of  benefit," 
in  Mr.  Smith's  notes  to  Cumber  v.  Wane,'  is  not  (as  I  conceive) 
that  sort  of  benefit  which  a  creditor  may  derive  from  getting 
payment  of  part  of  the  money  due  to  him  from  a  debtor  who 
might  otherwise  keep  him  at  arm's  length,  or  possibly  become 
insolvent,  but  is  some  independent  benefit,  actual  or  contingent, 
of  a  kind  which  might  in  law  be  a  good  and  valuable  consider- 
ation for  any  other  sort  of  agreement  not  under  seal. 

My  conclusion  is,  that  the  order  appealed  from  should  be 
affirmed,  and  the  appeal  dismissed,  with  costs,  and  I  so  move 
your  Lordships. 

Lord  Blackburn.  My  Lords,  the  first  question  raised  is  as 
to  what  was  the  true  construction  of  the  memorandum  of  agree- 
ment made  on  December  21st,  1876.  What  was  it  that  the  par- 
ties by  that  writing  agreed  to  ? 

The  appellants  contend  that  they  meant  that  on  payment 
down  of  ^500,  and  payment  within  a  month  after  July  ist  and 
January  ist  in  each  ensuing  year  of  ;^i5o,  until  the  sum  of 
^2090  igs.  was  paid,  the  judgment  for  that  sum  and  interest 
should  be  satisfied,  for  an  agreement  to  take  no  proceedings  on 
the  judgment  is  equivalent  to  treating  it  as  satisfied.  This  con- 
struction of  the  memorandum  requires  that  after  the  tenth  pay- 
ment of  ;^i5o  there  should  be  a  further  payment  of  ;£go  igs. 
made  within  the  next  six  months.  This  is  the  construction 
which  all  three  Courts  below  have  put  upon  the  memorandum. 

The  respondent  contends  that  the  true  construction  of  the 
memorandum  was  that  time  was  to  be  given  on  those  conditions 
for  five  years,  the  judgment  being  on  default  of  any  one  pay- 
ment enforceable  for  whatever  was  still  unpaid,  with  interest 
from  the  date  the  judgment  was  signed,  but  that  the  interest 
was  not  intended  to  be  forgiven  at  all. 

If  this  is  the  true  construction  of  the  agreement  the  judgment 
appealed  against  is  right  and  should  be  affirmed,  whether  the 
reason  on  which  the  Court  of  Appeal  founded  its  judgment  was 
right  or  not.  I  am,  however,  of  opinion  that  the  Courts  below, 
who  on  this  point  were  unanimous,  put  the  true  construction 
on  the  memorandum.  I  do  not  think  the  question  free  from 
difficulty.  It  would  have  been  easy  to  have  expressed,  in  un- 
'  I  Sm.  L.  C.  8th  ed.  366. 


SEC.  11^/.]  FOAKES   V.    BEER.  413 

mistakable  words,  that  on  payment  down  of  ;3^5oo,  and  punc- 
tual payment  at  the  rate  of  jQ^oo  a  year  till  jQzo^o  igs.  was 
paid,  the  judgment  should  not  be  enforced  either  for  principal 
or  interest  ;  or  language  might  have  been  used  which  should 
equally  clearly  have  expressed  that,  though  time  was  to  be 
given,  interest  was  to  be  paid  in  addition  to  the  instalments. 
The  words  actually  used  are  such  that  I  think  it  is  quite  possible 
that  the  two  parties  put  a  different  construction  on  the  words 
at  the  time  ;  but  I  think  the  words  "  till  the  said  sum  of  ^^2090 
195.  shall  have  been  fully  paid  and  satisfied"  cannot  be  con- 
strued as  meaning  "  till  that  sum,  with  interest  from  the  day 
judgment  was  signed,  shall  have  been  fully  paid  and  satisfied," 
nor  can  the  promise  "  not  to  take  any  proceedings  whatever  on 
the  judgment"  be  cut  down  to  meaning  any  proceedings  except 
those  necessary  to  enforce  payment  of  interest. 

I  think,  therefore,  that  it  is  necessary  to  consider  the  ground 
on  which  the  Court  of  Appeal  did  base  their  judgment,  and  to 
say  whether  the  agreement  can  be  enforced.  I  construe  it  as 
accepting  and  taking  ^500  in  satisfaction  of  the  whole  ^2090 
19J.,  subject  to  the  condition  that  unless  the  balance  of  the  prin- 
cipal debt  was  paid  by  the  instalments,  the  whole  might  be  en- 
forced with  interest.  If,  instead  of  ;^5oo  in  money,  it  had  been 
a  horse  valued  at  ^500,  or  a  promissory  note  for  ;!^5oo,  the 
authorities  are  that  it  would  have  been  a  good  satisfaction,  but 
it  is  said  to  be  otherwise  as  it  was  money. 

This  is  a  question,  I  think,  of  difficulty. 

In  Coke,  Littleton  212b,  Lord  Coke  says  :  "  Where  the  con- 
dition is  for  payment  of  ;z{^2o,  the  obligor  or  feoffor  cannot  at 
the  time  appointed  pay  a  lesser  sum  in  satisfaction  of  the  whole, 
because  //  is  apparent  that  a  lesser  sum  of  money  cannot  be  a  satis- 
faction of  a  greater.  ...  If  the  obligor  or  feoffor  pay  a  lesser 
sum  either  before  the  day  or  at  another  place  than  is  limited  by 
the  condition,  and  the  obligee  or  feoffee  receiveth  it,  this  is  a 
good  satisfaction."  For  this  he  cites  Pinnel's  Case.'  That 
was  an  action  on  a  bond  for  ;^  16,  conditioned  for  the  payment  of 
jQ^  10s.  on  November  nth,  1600.  Plea  that  defendant,  at  plain- 
tiff's request,  before  the  said  day,  to  wit,  on  October  ist,  paid 
to  the  plaintiff  ^e^  2s.  2d.,  which  the  plaintiff  accepted  in  full 
satisfaction  of  the  ;^8  10s.  The  plaintiff  had  judgment  for  the 
insufficient  pleading.  But  though  this  was  so,  Lord  Coke  re- 
ports that  it  was  resolved  by  the  whole  Court  of  Common  Pleas 
"  that  payment  of  a  lesser  sum  on  the  day  in  satisfaction  of  a 
greater  cannot  be  any  satisfaction  for  the  whole,  because  it 
appears  to  the  judges  that  by  no  possibility  a  lesser  sum  can  be 

'  5  Rep.  117a. 


414  FOAKES   V.    BEER.  [cHAP.  I. 

a  satisfaction  to  the  plaintiff  for  a  greater  sum  ;  but  the  gift  of 
a  horse,  hawk,  or  robe,  etc.,  in  satisfaction  is  good,  for  it  shall 
be  intended  that  a  horse,  hawk,  or  robe,  etc.,  might  be  more 
beneficial  to  the  plaintiff  than  the  money,  in  respect  of  some  cir- 
cumstance, or  otherwise  the  plaintiff  would  not  have  accepted 
of  it  in  satisfaction.  But  when  the  whole  sum  is  due,  by  no 
intendment  the  acceptance  of  parcel  can  be  a  satisfaction  to  the 
plaintiff  ;  but  in  the  case  at  bar  it  was  resolved  that  the  pay- 
ment and  acceptance  of  parcel  before  the  day  in  satisfaction  of  ^ 
the  whole  would  be  a  good  satisfaction  in  regard  of  circum- 
stance of  time  ;  for  peradventure  parcel  of  it  before  the  day 
would  be  more  beneficial  to  him  than  the  whole  at  the  day,  and 
the  value  of  the  satisfaction  is  not  material  ;  so  if  I  am  bound 
in  p^2o  to  pay  you  jQio  at  Westminster,  and  you  request  me 
to  pay  you  ^^5  at  the  day  at  York,  and  you  will  accept  it  in  full 
satisfaction  for  the  whole  ;^io,  it  is  a  good  satisfaction  for  the 
whole,  for  the  expenses  to  pay  it  at  York  is  sufficient  satisfac- 
tion." 

There  are  two  things  here  resolved.  First,  that  where  a 
matter  paid  and  accepted  in  satisfaction  of  a  debt  certain  might 
by  any  possibility  be  more  beneficial  to  the  creditor  than  his 
debt,  the  Court  will  not  inquire  into  the  adequacy  of  the  con- 
sideration. If  the  creditor,  without  any  fraud,  accepted  it  in 
satisfaction  when  it  was  not  a  sufficient  satisfaction  it  was  his 
own  fault.  And  that  payment  before  the  day  might  be  more 
beneficial,  and  consequently  that  the  plea  was  in  substance 
good,  and  this  must  have  been  decided  in  the  case. 

There  is  a  second  point  stated  to  have  been  resolved — viz. : 
"  That  payment  of  a  lesser  sum  on  the  day  cannot  be  any  satis- 
faction of  the  whole,  because  it  appears  to  the  judges  that  by 
no  possibility  a  lesser  sum  can  be  a  satisfaction  to  the  plaintiff 
for  a  greater  sum."  This  was  certainly  not  necessary  for  the 
decision  of  the  case  ;  but  though  the  resolution  of  the  Court  of 
Common  Pleas  was  only  a  dictum,  it  seems  to  me  clear  that 
Lord  Coke  deliberately  adopted  the  dictum,  and  the  great 
weight  of  his  authority  makes  it  necessary  to  be  cautious  before 
saying  that  what  he  deliberately  adopted  as  law  was  a  mistake, 
and  though  I  cannot  find  that  in  any  subsequent  case  this  dic- 
tum has  been  made  the  ground  of  the  decision,  except  in  Fitch  v. 
Sutton,'  as  to  which  I  shall  make  some  remarks  later,  and  in 
Down  V.  Hatcher,''  as  to  which  Parke,  B.,  in  Cooper  v.  Parker,' 
said:  "  Whenever  the  question  may  arise  as  to  whether  Down  v. 
Hatcher*  is  good  law,  I  should  have  a  great  deal  to  say  against 

1  5  East,  230.  2  15  c.  B.  828, 

»  10  A.  &  E.  121.  *  10  A.  &  E.  121. 


SEC.  11^.]  FOAKES   V.    BEER.  415 

it,"  yet  there  certainly  are  cases  in  which  great  judges  have 
treated  the  dictum  in  Pinnel's  Case'  as  good  law. 

For  instance,  in  Sibree  v.  Tripp,"  Parke,  B.,  says  :  "  It  is 
clear  if  the  claim  be  a  liquidated  and  ascertained  sum,  payment 
of  part  cannot  be  satisfaction  of  the  whole,  althougli  it  may, 
under  certain  circumstances,  be  evidence  of  a  gift  of  the  re- 
mainder." And  Alderson,  B.,  in  the  same  case  says  :  "  It  is 
undoubtedly  true  that  payment  of  a  portion  of  a  liquidated  de- 
mand, in  the  same  manner  as  the  whole  liquidated  demand 
which  ought  to  be  paid,  is  payment  only  in  part,  because  it  is 
not  one  bargain,  but  two — viz.,  payment  of  part,  and  an  agree- 
ment without  consideration  to  give  up  the  residue.  The  Courts 
might  very  well  have  held  the  contrary,  and  have  left  the  mat- 
ter to  the  agreement  of  the  parties,  but  undoubtedly  the  law  is 
so  settled."  After  such  strong  expressions  of  opinion,  I  doubt 
much  whether  any  judge  sitting  in  a  Court  of  the  first  instance 
would  be  justified  in  treating  the  question  as  open.  But  as  this 
has  very  seldom,  if  at  all,  been  the  ground  of  the  decision  even 
in  a  Court  of  the  first  instance,  and  certainly  never  been  the 
ground  of  a  decision  in  the  Court  of  Exchequer  Chamber,  still 
less  in  this  House,  I  did  think  it  open  in  your  Lordships'  House 
to  reconsider  this  question.  And,  notwithstanding  the  very 
high  authority  of  Lord  Coke,  I  think  it  is  not  the  fact  that  to 
accept  prompt  payment  of  a  part  only  of  a  liquidated  demand, 
can  never  be  more  beneficial  than  to  insist  on  payment  of  the 
whole.  And  if  it  be  not  the  fact,  it  cannot  be  apparent  to  the 
judges. 

I  will  first  examine  the  authorities.  If  a  defendant  pleaded 
the  general  issue,  the  plaintiff  could  join  issue  at  once,  and  if 
the  case  was  not  defended  get  his  verdict  at  the  next  assizes. 
But  by  pleading  a  special  plea,  the  plaintiff  was  obliged  to  reply, 
and  the  defendant  often  caused  the  plaintiff,  merely  by  the 
delay  occasioned  by  replying,  to  lose  an  assize.  If  the  replica- 
tion was  one  to  which  he  could  demur  he  made  this  sure. 
Strangely  enough  it  seems  long  to  have  been  thought  that  if  the 
defendant  kept  within  reasonable  bounds,  neither  he  nor  his 
lawyers  were  to  blame  in  getting  time  in  this  way  by  a  sham 
plea — that  a  chattel  was  given  and  accepted  in  satisfaction  of 
the  debt.  The  recognized  forms  were  giving  and  accepting  in 
satisfaction  a  beaver  hat.  Young  v.  Rudd,'  or  a  pipe  of  wine.'* 
All  this  is  now  antiquated.  But  while  it  continued  to  be  the 
practice,  the  pleas  founded  on  the  first  part  of  the  resolution  in 
Pinnel's  Case^  were  very  common,  and  that  law  was  perfectly 

1  5  Rep.  117a.  '15  M.  &  W.  33,  37.  *  5  Mod.  86. 

*  3  Chit.  Plead.  7th  ed.  92.  ^  5  Rep.  ii^a. 


4l6  FOAKES   V.    BEER.  [cHAP.  I. 

trite.  No  one  for  a  moment  supposed  that  a  beaver  hat  was 
really  given  and  accepted  ;  but  every  one  knew  that  the  law 
was  that  if  it  was  really  given  and  accepted  it  was  a  good  satis- 
faction. But  special  pleas  founded  on  the  other  resolution  in 
Pinnel's  Case/  on  what  I  have  ventured  to  call  the  dictum,  were 
certainly  not  common.  I  doubt  if  a  real  defence  of  this  sort 
was  ever  specially  pleaded.  When  there  really  was  a  question 
as  to  whether  a  debt  was  satisfied  by  a  payment  of  a  smaller 
sum  the  defendant  pleaded  the  general  issue,  and  if  it  was 
proved  to  the  satisfaction  of  the  jury  that  a  smaller  sum  had 
been  paid  and  accepted  in  satisfaction  of  a  greater,  if  objection 
was  raised  the  jury  might,  perhaps,  as  suggested  by  Holroyd,  J., 
in  Thomas  v.  Heathorn,^  find  that  the  circumstances  were  such 
that  the  legal  effect  was  to  be  as  if  the  whole  was  paid  down 
and  a  portion  thrown  back  as  a  god's-penny.  This,  however, 
seems  to  me  to  be  an  unsatisfactory  and  artificial  way  of  avoid- 
ing the  effect  of  the  dictum,  and  it  could  not  be  applied  to  such 
an  agreement  as  that  now  before  this  House. 

For  whatever  reason  it  was,  I  know  of  no  case  in  which  the 
question  was  raised  whether  a  payment  of  a  lesser  sum  could 
be  satisfaction  of  a  liquidated  demand  from  Pinnel's  Case^  down 
to  Cumber  v.  Wane,  5  Geo.  i,*  a  period  of  one  hundred  and 
fifteen  years. 

In  Adams  v.  Tapling,^  where  the  plea  was  bad  for  many  other 
reasons,  it  is  reported  to  have  been  said  by  the  Court  that  : 
"  In  covenant  where  the  damages  are  uncertain,  and  to  be  re- 
covered, as  in  this  case,  a  lesser  thing  may  be  done  in  satisfac- 
tion, and  there  '  accord  and  satisfaction  '  is  a  good  plea."  No 
doubt  this  was  one  of  the  cases  which  Parke,  B.,  would  have 
cited  in  support  of  his  opinion  that  Down  v.  Hatcher*  was  not 
good  law.  The  Court  are  said  to  have  gone  on  to  recognize  the 
dictum  in  Pinnel's  Case,'  or  at  least  not  to  dissent  from  it,  but 
it  was  not  the  ground  of  their  decision.  In  every  other  reported 
case  which  I  have  seen  the  question  arose  on  a  demurrer  to  a 
replication  to  what  was  obviously  a  sham  or  dilatory  plea. 

Some  doubt  has  been  made  as  to  what  the  pleadings  in  Cum- 
ber V.  Wane*  really  were.  I  have  obtained  the  record.^  The 
plea  is  that  after  the  promises  aforesaid,  and  before  the  issuing 
of  the  writ,  it  was  agreed  between  the  said  George  and  Edward 
Cumber  that  he,  the  said  George,  "  daret  eidem  Edwardo  Cumber 
quandm  notam  in  script  vocatam,  a  promissory  note,  manu  propria 

'  5  Rep.  117a.  5  4  Mod.  88.  »   The     reference     is  : 

'  2  B.  &  C.  482.  «  10  A.  &  E.  121.  Queen's  Bench  (Plea  side) 

3  5  Rep.  117a.  •I  5  Rep.  117^:.  Plea  Roll.  5  Geo.  i,  Trin- 

"*  I  Sm.  L.  C.  8th  ed.  357.  *  i  Str.  426.  ity,  ro.  173. 


SEC.  11^.]  FOAKES  V.   BEER.  417 

ipsius  Georgii  subscript  pr.  solucon  eidefn  Edwardo  Cumber  vel  ordird 
quinque  librarutn,''''  fourteen  days  after  date,  in  full  satisfaction 
and  exoneration  of  the  premises  and  promises,  which  said  note 
in  writing  the  said  George  then  gave  to  the  said  Edward  Cum- 
ber, and  the  said  Edward  Cumber  then  and  there  received  from 
the  said  George  the  said  note  in  full  satisfaction  and  discliarge 
of  the  premises  and  promises. 

The  replication  is  that  "  the  said  George  did  not  give  to  him 
Edward  any  note  in  writing  called  a  promissory  note  with  the 
hand  of  him  George  subscribed  for  the  payment  to  him  Edward 
or  his  order  of  ^5,  fourteen  days  after  date  in  full  satisfaction 
and  discharge  of  the  premises  and  promises."  To  this  there  is 
a  demurrer  and  judgment  in  the  Common  Pleas  for  the  plaintiff 
"  that  the  replication  was  good  in  law." 

The  reporter,  oddly  enough,  says  there  was  an  immaterial 
replication.  The  effect  of  the  replication  is  to  put  in  issue  the 
substance  of  the  defence — namely,  the  giving  in  satisfaction  ; 
Young  V.  Rudd,'  and  certainly  that  was  not  immaterial.  But 
for  some  reason,  I  do  not  stop  to  inquire  what,  Pratt,  C.J., 
prefers  to  base  the  judgment  affirming  that  of  the  Common 
Pleas  on  the  supposed  badness  of  the  plea  rather  than  on  the 
sufficiency  of  the  replication.  It  is  impossible  to  doubt  that 
the  note,  which  it  is  averred  in  the  plea  was  given  as  satisfac- 
tion, was  a  negotiable  note.  And  therefore  this  case  is  in  direct 
conflict  with  Sibree  v.  Tripp. ^ 

Tv/o  cases  require  to  be  carefully  considered.  The  first  is 
Heathcote  v.  Crookshanks.^  The  plea  there  pleaded  would, 
I  think,  now  be  held  perfectly  good,  see  Norman  v.  Thompson  ;* 
but  BuUer,  J.,  seems  to  have  thought  otherwise.  He  saj^s  : 
"  Thirdly,  it  was  said  that  all  the  creditors  were  bound  by  this 
agreement  to  forbear,  but  that  is  not  stated  by  the  plea.  It  is 
only  alleged  that  they  agreed  to  take  a  ceitain  proportion,  but 
that  is  a  nudum  pactum,  unless  they  had  afterward  accepted  it. 
In  the  case  in  which  Cumber  v.  Wane^  was  denied  to  be  law, 
Hardcastle  v.  Howard  (26  Geo.  3,  B.R.),  the  party  actually 
accepted.  But  as  the  plaintiff  in  the  present  case  refused  to 
take  less  than  the  whole  demand,  the  plea  is  clearly  bad." 

That  decision  goes  entirely  on  the  ground  that  accord  without 
satisfaction  is  not  a  plea.  I  do  not  think  it  can  be  fairly  said 
that  Buller,  J.,  meant  by  saying  "  thdt  is  a  tiudum pactum,  unless 
they  had  afterward  accepted  it,"  to  express  an  opinion  that  if 
the  dividend  had  been  accepted  it  would  have  been  a  good  satis- 
faction.    But  he  certainly  expresses  no  opinion  the  other  way. 

1  5  Mod.  86.  5  15  M.  &  W.  23.  3  2  T.  R.  24. 

*  4  Ex.  755.  5  I  Str.  426. 


4.l8  FOAKES   V.    BEER.  [cHAP.  I. 

In  Fitch  V.  Sutton'  not  only  did  the  plaintiff  not  accept  the 
payment  of  the  dividend  in  satisfaction,  but  refused  to  accept 
it  at  all,  unless  the  defendant  promised  to  pay  him  the  balance 
when  of  ability,  and  the  defendant  assented  and  made  the  prom- 
ise required,  so  that  but  for  the  fact  that  other  creditors  were 
parties  to  the  composition  there  could  have  been  no  defence. 
There  was  no  point  of  pleading  in  that  case,  the  whole  being 
open  under  the  general  issue.  And  in  Steinman  v.  Magnus^  it 
was  pretty  well  admitted  by  Lord  Ellenborough  that  the  de- 
cision in  Fitch  v.  Sutton^  would  have  been  the  other  way,  if 
they  had  understood  the  evidence  as  the  reporter  did.  But 
though  this  misapprehension  of  the  judges  as  to  the  facts,  and 
the  absence  of  any  acceptance  of  the  dividend,  greatly  weaken 
the  weight  of  Fitch  v.  Sutton,*  still  it  remains  that  Lord  Ellen- 
borough,  a  very  great  judge  indeed,  did,  however  hasty  or  un- 
necessary it  may  have  been  to  express  such  an  opinion,  say  : 
"  It  is  impossible  to  contend  that  acceptance  of  jQi"]  los.  is  an 
extinguishment  of  a  debt  of  ^^50.  There  must  be  some  consid- 
eration for  the  relinquishment  of  the  residue  ;  something  col- 
lateral, to  show  a  possibility  of  benefit  to  the  party  relinquishing 
his  further  claim,  otherwise  the  agreement  is  nudum  pactum. 
But  the  mere  promise  to  pay  the  rest  when  of  ability  put  the 
plaintiff  in  no  better  condition  than  he  was  before.  It  was  ex- 
pressly determined  in  Cumber  v.  Wane^  that  acceptance  of  a 
security  for  a  lesser  sum  cannot  be  pleaded  in  satisfaction  of  a 
similar  security  for  a  greater.  And  though  that  case  was  said 
by  me  in  argument  in  Heathcote  v.  Crookshanks*  to  have  been 
denied  to  be  law,  and  in  confirmation  of  that  Buller,  J.,  after- 
ward referred  to  a  case  (stated  to  be  that  of  Hardcastle  v.  How- 
ard (H.  26  Geo.  3),  yet  I  cannot  find  any  case  of  that  sort,  and 
none  has  been  now  referred  to  ;  on  the  contrary,  the  decision 
in  Cumber  v.  Wane'  is  directly  supported  by  the  authority  of 
Pinnel's  Case,*  which  never  appears  to  have  been  questioned." 

I  must  observe  that,  whether  Cumber  v.  Wane^  was,  or  was 
not  denied  to  be  law  in  Hardcastle  v.  Howard,  it  certainly  was 
denied  to  be  law  in  Sibree  v.  Tripp,"  and  that,  though  it  is  quite 
true  that  Pinnel's  Case,''  as  far  as  regards  the  points  actually 
raised  in  the  case,  has  not  only  never  been  questioned,  but  is 
often  assented  to,  I  am  not  aware  that  in  any  case  before  Fitch  v. 
Sutton,'''  unless  it  be  Cumber  z;.  Wane, '^  has  that  part  of  it  which 

»  5  East,  230.  «2T.  R.  24.  '0  15  M.  &  W.  23. 

»  II  East,  390,  "I  I  Str.  426.  '■'  5  Rep.  117a. 

3  5  East,  230.  8  5  Rep.  117a.  i»  5  East.  230. 

*  Ibid.  »  I  Str.  426.  13  I  str.  426. 

*  1  Str.  426. 


I 


SEC.  llcf.]  FOAKES   Z'.    BEER.  419 

T  venture  to  call  the  dictum  ever  been  acted  upon  ;  and  as  I 
have  pointed  out,  had  it  not  been  for  the  composition  with  other 
creditors,  there  could  have  been  no  defence  in  Fitch  z'.  Sutton,' 
whether  the  dictum  in  Pinnel's  Case'  was  right  or  wrong. 

Still  this  is  an  authority,  and  I  have  no- doubt  that  it  was  on 
the  ground  of  this, authority  and  the  adhesion  of  Bayley,  J.,  to 
it  in  Thomas  z\  Heathorn,^  that  Barons  Parke  and  Alderson  ex- 
pressed themselves  as  the\'  did  in  the  passages  I  have  cited  from 
Sibree  v.  Tripp.*  And  I  tliink  that  their  expressions  justify 
Mr.  John  William  Smith  in  laying  it  down  as  he  does  in  his 
note  to  Cumber  v.  Wane,*  in  the  second  edition  of  his  Leading 
Cases,  that  "  a  liquidated  and  undisputed  money  demand,  of 
which  the  day  of  payment  is  passed  (not  founded  upon  a  bill  of 
exchange  or  promissory  note),  cannot  even  with  the  consent  of 
the  creditor  be  discharged  by  mere  payment  by  the  debtor  of  a 
smaller  amount  in  money  in  the  same  manner  as  he  was  bound 
to  pay  the  whole."  I  am  inclined  to  think  that  this  was  settled 
in  a  Court  of  the  first  instance.  I  think,  however,  that  it  was 
originally  a  mistake. 

What  principally  weighs  with  me  in  thinking  that  Lord  Coke 
made  a  mistake  of  fact  is  my  conviction  that  all  men  of  busi- 
ness, whether  merchants  or  tradesmen,  do  every  day  recognize 
and  act  on  the  ground  that  prompt  payment  of  a  part  of  their 
demand  may  be  more  beneficial  to  them  than  it  would  be  to 
insist  on  their  rights  and  enforce  payment  of  the  whole.  Even 
where  the  debtor  is  perfectly  solvent,  and  sure  to  pay  at  last, 
this  often  is  so.  AVhere  the  credit  of  the  debtor  is  doubtful  it 
must  be  more  so.  I  had  persuaded  myself  tnat  there  was  no 
such  long-continued  action  on  this  dictum  as  to  render  it  im- 
proper in  this  House  to  reconsider  the  question.  I  had  written 
my  reasons  for  so  thinking  ;  but  as  they  were  not  satisfactory 
to  the  other  noble  and  learned  Lords  who  heard  the  case,  I  do 
not  now  repeat  them  nor  persist  in  them. 

I  assent  to  the  judgment  proposed,  though  it  is  not  that  which 
I  had  originally  thought  proper.* 

Order  appealed  from  affirmed,  and  appeal  dismissed  with 
costs. 

'  5  East,  230.  *  1  Str.  426. 

"  5  Rep.  117a.  *  The  concurring  opinions  of  Lords 

*  2  B.  &  C.  477.  Fitzgerald    and    Watson    have   been 

*  15  M.  &  W.  23.  omitted. — Ed. 


420  BIDDER  V.   BRIDGES.  [CHAP.  I. 

BIDDER  V.  BRIDGES. 
In  the  Court  of  Appeal,  December  20,  1887. 
[Reported  m  Law  Reports,  37  Chancery  Division  406.] 

The  action  in  this  case  was  brought  for  the  purpose  of  estab- 
lishing certain  rights  of  common. 

The  action  was  tried  before  Kay,  J.,  who  gave  judgment  on 
October  27th,  1885,  in  favor  of  the  defendants  with  costs.  The 
plaintiffs  appealed  from  this  judgment,  and  the  appeal  was  dis- 
missed with  costs  on  August  2d,  1886. 

The  costs  of  the  judgment  and  the  appeal  were  taxed,  and 
the  certificates  of  the  Taxing  Master  were  given  on  May  27th, 
1887,  from  which  it  appeared  that  the  amount  of  the  taxed  costs 
of  the  judgment  payable  to  the  defendant,  H.  Davis,  was 
;j^465  17J.  10^/.,  and  of  the  taxed  costs  of  the  appeal,  ^144  ']s.  4^. 

Mr.  C.  A.  Russ  was  the  solicitor  acting  for  H.  Davis  in  the 
action,  and  he  was  prepared  to  file  the  certificates  when  he  re- 
ceived a  letter  from  Messrs.  Rooke  &  Sons,  the  solicitors  for  the 
plaintiffs,  asking  him  to  call  on  them  to  settle  the  costs,  and  not 
to  put  his  clients  to  the  expense  of  filing  the  certificates. 

Mr.  Norris,  the  managing  clerk  of  Mr.  Russ,  accordingly 
called  on  Messrs.  Rooke  &  Sons,  on  May  28th,  1887,  when  Mr. 
F.  H.  Rooke  handed  him  a  check  for  ;C(iog  5^.  2d.,  being  the 
amount  of  the  taxed  costs  of  the  judgment  and  appeal,  less  jQi, 
which  was  deducted  on  account  of  the  certificates  not  being 
filed.  Mr.  Norris  then  signed  receipts  for  the  costs,  which  were 
endorsed  upon  the  certificates,  and  he  then  handed  over  the 
certificates  to  Mr.  F.  H.  Rooke.  The  form  of  the  receipt  on 
the  certificate  of  the  costs  of  the  judgment  was  as  follows  : 

"  Received  by  check  the  within-mentioned  costs  of  ^465  i^s. 
lod.,  less  10^.,  remitted. 

"  Charles  A.  Russ. — H.  G.  N." 

And  a  similar  receipt  was  given  for  the  costs  of  the  appeal. 
The  check  was  drawn  by  Rooke  &  Sons  in  favor  of  C.  A.  Russ, 
Esq.,  or  order,  and  was  duly  paid. 

Mr.  Rooke  in  his  affidavit  stated  that  he  objected  to  pay  for 
the  filing  of  the  certificates  on  the  ground  that  they  had  been 
taken  out  without  giving  notice  to  his  firm  of  the  final  appoint- 
ment to  dispose  of  certain  outstanding  queries  and  in  their  ab- 
sence, and  also  on  the  ground  that  filing  the  certificates  was  an 
unnecessary  expense  ;  and  that  he  gave  the  check  in  full  satis- 


J 


SEC.  11^.]  BIDDER   V.    BRIDGES.  42 1 

faction  of  all  Davis's  claims  against  the  plaintiffs  under  the 
certificates.  Mr.  Norris,  however,  made  a  counter  affidavit 
stating  that  all  the  queries  were  finally  disposed  of  in  tlie  pres- 
ence of  a  representative  of  Messrs.  Rooke  &  Sons.  Noticing 
was  said  at  the  time  about  interest  on  the  costs,  but  on  July  i  ith, 
1887,  Mr.  Russ  wrote  a  letter  to  Messrs.  Rooke  &  Sons,  in  which 
he  said  :  "  When  you  handed  me  check  for  the  amount  of  taxed 
costs  you  omitted  to  include  interest  on  the  respective  certifi- 
cates. This  interest,  calculated  at  4  per  cent  from  the  respec- 
tive dates  of  the  judgment  and  appeal,  must  be  paid  in  the  usual 
way,  and  I  should  be  obliged  by  your  procuring  and  handing 
me  a  check  for  ^2,2,  i6s.  "jd.,  the  amount  of  interest  as  afore- 
said." Messrs.  Rooke  &  Sons  having  declined  to  pay  the  inter- 
est claimed,  Mr.  Russ  wrote  to  them  to  return  the  certificates 
in  order  that  they  might  take  further  proceedings  on  them  ; 
and  enclosed  in  their  place  a  separate  receipt  for  the  money 
which  had  been  paid.  Messrs.  Rooke  &  Sons  refused  to  give 
up  the  certificates,  and  the  defendant  Davis  then  moved  before 
Stirling,  J.,  that  the  plaintiffs  be  ordered  to  file,  or  to  attend 
before  the  proper  officer  of  the  Court,  and  produce  to  such 
officer  the  certificates  of  the  Taxing  Master  of  May  27th,  1887, 
for  the  purpose  of  enabling  the  defendant  Davis  to  issue  a  writ 
oi  fi.  fa.  for  the  interest  on  the  costs  thereby  certified  and  due 
from  the  plaintiffs  to  Davis. 

The  motion  came  on  for  hearing  before  Stirling,  J.,  on  Novem- 
ber i8th,  1887. 

H.   Terrell  for  the  motion. 

W.  Pearson,  Q.C.,  for  the  plaintiffs, 

Stirling,  J.  This  is  an  application  of  a  very  unusual  char- 
acter. The  notice  of  motion  is  [his  Lordship  read  it  and  con- 
tinued] :  It  appears  that  the  action  of  Bidder  v.  Bridges  was 
dismissed  by  Kay,  J.,  with  costs  to  be  paid  to  all  the  defendants, 
including  Henry  Davis.  The  decision  was  affirmed  by  the 
Court  of  Appeal,  and  again  the  plaintiffs  were  ordered  to  pay 
the  costs.  The  costs  have  been  taxed  in  pursuance  of  the 
orders.  What  has  taken  place  since  is  in  evidence  in  the  affida- 
vit of  the  clerk  of  the  solicitor  who  acted  for  the  defendant 
Davis,  and  who  had  the  conduct  of  the  taxation.  It  is  to  the 
effect  that  the  costs  were  duly  taxed  at  ^465  17^'.  10^/.,  and 
^144  ']s.  4^/. ,  making  together  ^610  55-.  2(1.  [His  Lordship 
read  the  letters  which  passed  between  the  solicitors  in  May, 
1887,  and  continued.]  Upon  the  affidavits  there  is  to  a  certain 
extent  a  conflict  of  evidence.  Possibly,  in  one  view,  that  con- 
flict may  be  immaterial,  but  if  there  should  be  further  litigation 
it  may  be  material.     It  is  plain,  however,  that  there  was  a  dis- 


422  BIDDER   V.    BRIDGES.  [chap.  I. 

cussion  about  the  amount  to  be  paid.  The  solicitor  for  the 
plaintiffs  insisted  upon  a  reduction  of  £\  being  made  in  refer- 
ence to  the  filing  of  the  certificates — it  having  been  agreed  that 
they  should  not  be  filed  ;  and  he  also  insisted  that  the  clerk  of 
the  defendant's  solicitor  should  take  his  check  for  the  reduced 
amount  ;  and  to  my  mind,  as  the  matter  then  stood,  the  mean- 
ing of  both  parties  was  that  if  the  check  should  be  honored  it 
was  to  be  taken  in  payment  for  the  bills  of  costs.  That  is  not 
in  dispute,  whatever  may  be  the  legal  effect  of  the  transaction. 
The  check  was  honored.  It  has  the  endorsement  of  the  defend- 
ant's solicitor  upon  it.  Then  according  to  the  evidence  of  that 
solicitor's  clerk  he  discovered  a  week  or  two  afterward  that  the 
interest  had  been  omitted  to  be  charged.  That  is  an  incorrect 
statement,  because  when  he  went  to  the  plaintiffs'  solicitors* 
office  he  knew  that  the  interest  was  not  included  in  the  amount 
to  be  paid.  What  he  did  discover  was  a  decision  of  the  Court 
of  Appeal  showing  that  the  defendant  might  claim  interest,  and 
hence  this  motion. 

In  the  first  place  it  was  contended  that  I  have  no  jurisdiction 
to  make  the  order  asked  for.  I  do  not  think  it  necessary  to  go 
into  that  question,  but  I  am  not  prepared  to  say  that  in  a  proper 
case  I  have  not  jurisdiction.  If  I  found  that  one  solicitor  had 
by  fraud  or  trickery  got  from  another  a  document  which  ought 
to  be  filed,  and  if  by  its  not  being  filed  he  might  be  deprived  of 
his  just  rights,  I  would  try  to  see  whether  it  could  not  be  placed 
upon  the  files  of  the  Court  ;  but  that  is  not  this  case.  This  was 
a  perfectly  plain,  honest,  and  honorable  transaction  upon  both 
sides.  In  regard  to  it  the  plaintiffs  have  obtained  an  advantage 
honorably  got,  and  why  should  I  take  it  away  from  them  ?  It 
is  plain  that  the  certificates  were  not  to  be  filed,  and  as  plain 
that  it  was  competent  to  the  parties  to  enter  into  such  an 
arrangement  ;  if  any  mistake  was  made,  it  was  a  mistake  of 
law,  and  therefore  I  do  not  see  why  the  advantage  gained  should 
be  taken  from  the  plaintiffs.  The  agreement  being  clear  that 
the  certificates  should  not  be  filed,  I  do  not  think  that  I  ought 
to  interfere.  If  there  be  any  other  remedy  open  to  the  defend- 
ant he  can  pursue  it.  Possibly  that  is  enough  to  dispose  of  the 
motion.  If,  however,  there  be  jurisdiction,  and  I  am  to  exer- 
cise it,  I  must  be  clear  that  the  law  is  in  favor  of  the  applicant. 
The  object  in  view  is  to  have  the  certificates  filed  so  that  the 
applicant  may  immediately  afterward  proceed  to  obtain  the  in- 
terest. The  dispute  between  the  parties  in  regard  to  the  check 
being  given,  is  shown  in  the  evidence,  which  is  oath  against 
oath  and  nothing  more,  and  all  that  I  could  do,  if  I  made  an 
order,  would  be  to  put  the  matter  in  such  a  position  as  that  the 


SEC.  Ud.]  BIDDER   V.    BRIDGES,  423 

defendant  should  obtain  a  decision  upon  the  conflict  of  evidence  ; 
but  why  should  I  put  the  plaintiffs,  who  have  got  an  advantage, 
to  a  disadvantage,  to  which  they  ought  not  to  be  exposed  ? 
After  the  arguments  I  may  be  justified  in  seeing  whether  the 
authorities  are  in  favor  of  the  applicant.  What  was  done  by 
the  applicant  ?  He  accepted,  as  it  appears  to  me,  in  full  satis- 
faction of  the  plaintiffs'  liability  for  costs,  the  check  of  their 
solicitors  payable  to  order,  and  that  check  was  duly  honored. 
What  in  law  is  the  effect  of  that  ?  The  state  of  the  law  is  very 
peculiar  in  regard  to  the  acceptance  of  a  smaller  sum  in  satis- 
faction of  a  larger  debt.  The  law  has  been  recently  discussed 
in  the  case  of  Foakes  v.  Beer,'  the  head-note  of  which  states 
that  "  an  agreement  between  judgment  debtor  and  creditor, 
that  in  consideration  of  the  debtor  paying  down  part  of  the 
judgment  debt  and  costs,  and  on  condition  of  his  paying  to  the 
creditor  or  his  nominee  the  residue  by  instalments,  the  creditor 
will  not  take  any  proceedings  on  the  judgment,  is  nudum  pactum,  ^ 
being  without  consideration,  and  does  not  prevent  the  creditor 
after  payment  of  the  whole  and  costs  from  proceeding  to  enforce 
payment  of  the  interests  upon  the  judgment."  That  decision 
was  founded  upon  the  doctrine  laid  down  so  long  ago  as  Pinnel's 
Case,''  and  it  will  be  sufficient  for  my  purpose  here  if  I  refer  to 
what  Lord  Blackburn  said  in  his  speech  as  to  that  case  :'  "  That 
was  an  action  on  a  bond  for  ^16  conditioned  for  the  payment 
of  ;^8  loi-.  on  November  nth,  1600.  Plea  that  defendant,  at 
plaintiff's  request,  before  the  said  day,  to  wit,  on  October  ist, 
paid  to  the  plaintiff  j[^^  2s.  2d.  which  the  plaintiff  accepted  in 
full  satisfaction  of  the  ^8  los.  The  plaintiff  had  judgment  for 
the  insufficient  pleading,"  and  his  Lordship  went  on  to  state 
that  Lord  Coke  reports  that  the  Court  resolved  "  that  payment  > 
of  a  lesser  sum  on  the  day  in  satisfaction  of  a  greater  cannot  be 
any  satisfaction  for  the  whole  .  .  .  but  the  gift  of  a  horse,  1 
hawk,  or  robe,  etc.,  in  satisfaction  is  good,  for  it  shall  be  in- 
tended that"  either  "  might  be  more  beneficial  to  the  plaintiff 
than  the  money  ;"  and  after  referring  further  to  that  case  Lord 
Blackburn  said  :  "  There  are  two  things  here  resolved.  First, 
that  where  a  matter  paid  and  accepted  in  satisfaction  of  a  debt 
certain  might  by  any  possibility  be  more  beneficial  to  the  cred- 
itor than  his  debt,  the  Court  will  not  inquire  into  the  adequacy- 
of  the  consideration."  And,  secondly,  "  that  payment  of  a 
lesser  sum  on  the  day  cannot  be  any  satisfaction  of  the  whole." 
There  were,  therefore,  two  resolutions  in  Pinnel's  Case,  and  the 
decision  of  the  House  of  Lords  affirmed  the  second  ;  but,  as  I 

'  9  App.  Cas.  605.  '  5  Rep.  \\ia  ;  Co.  Litt.  212^. 

*  9  App.  Cas.^615. 


424  BIDDER   V.    BRIDGES.  [CHAP.  I. 

understand  that  decision,  it  did  not  in  any  way  disaffirm  the 
other.  Therefore  the  first  resolution  referred  to  by  Lord  Black- 
burn is  just  as  much  binding  on  me  as  the  second.  Then  comes 
the  question  here,  Is  a  negotiable  instrument  such  a  matter  as 
may  be  "  paid  and  accepted  in  satisfaction  of  a  debt  certain  ?" 
The  applicant  accepted  not  a  negotiable  instrument  of  his 
J  debtors,  but  that  of  their  solicitors.  He  took  the  check  of 
different  persons.  Was  that  an  accord  and  satisfaction  accord- 
ino-  to  the  authorities  ?  No  doubt  the  case  of  Cumber  v.  Wane' 
was  one  in  reference  to  a  promissory  note.  In  Foakes  v.  Beer* 
the  record  of  Cumber  ?'.  Wane  is  fully  stated  at  page  619.     The 

■  decision  was  that  giving  a  promissory  note  for  ^5    cannot  be 
pleaded  as  a  satisfaction  for  ^15,  but  this  has  been  denied  by  a 
series  of  authorities  to  be  law.      Thus  in  Sibree  v.  Tripp'  it  was 
held  that  a  promissory,  note  taken   for  a  less  sum  than  the  de- 
ll mand  was  a  good  satisfaction  ;  that  a  negotiable  instrument  for 
'[   a  smaller  sum  may  be  given  in  satisfaction  of  a  larger  debt. 

Then  there  is  the  case  of  Curlewis  v.  Clark,*  and  also  that  of 
Goddard  7'.  O'Brien,^  which  goes  even  further  than  I  am  re- 
quired to  go  in  this  case.  It  was  contended  that  these  three 
authorities  went  upon  the  view  that  Cumber  7'.  Wane*  was  bad 
law,  and  that  this  was  inconsistent  with  the  decision  in  Foakes  v. 
Beer.'  I  do  not,  however,  understand  the  House  of  Lords  to 
approve  of  the  application  made  in  Cumber  zi.  Wane  of  the  doc- 
trine laid  down  in  Pinnel's  Case.®  In  that  case  there  was  a 
j  qualification  added  that  if  a  thing  of  a  different  kind  be  given, 
that  is  a  good  satisfaction.  That  qualification  was  disregarded 
in  Cumber  7>.  Wane  ;  and  in  Foakes  v.  Beer  this  circumstance  is 
commented  upon  by  both  Earl  Selborne  and  Lord  Blackburn. 
If  further  authority  is  required  I  may  refer  to  the  notes  of  the 
late  Willes,  J.,  and  of  Keating,  J.,  to  the  case  of  Cumber  v. 
Wane  in  Smith's  Leading  Cases,  where  they  state  the  law  to  be 
that  a  demand  may  be  discharged  by  payment  of  a  thing  differ- 
ent from  that  contracted  to  be  paid  though  of  less  pecuniary 
value,  and  they  give  as  an  instance  a  negotiable  instrument 
binding  the  debtor  or  a  third  person  to  pay  a  smaller  sum. 
Under  these  circumstances,  having  regard  to  the  current  of 
authorities,  which  appear  to  me  to  be  unaffected  by  the  decision 
y  ,  *,  of  the  House  of  Lords,  I  hold  that  the  check  of  a  third  party 

■  given    as  this    check  was,  was  a  satisfaction  of  the    debt    and 

'  I  Str.  426  ;  I  Sm.  L.  C.  8th  ed.  p.         ^  g  q_  b_  -q    ^^^ 
357-  *  I  Str.  426  ;  i  Sm.  L.  C.  8th  ed.  p, 

'  9  App.  Cas.  605.  357. 
»  15  M.  &  W.  23.  '  9  App.  Cas.  605. 

*  3  Ex.  375.  8  5  Rep    iija  ;  Co.  Litt.  2l2i>. 


I 


SEC.  ud.]  BIDDER    7'.    URIDGES,  42$ 

was  a  good  payment.  Therefore,  both  as  to  the  form  and  upon 
the  merits,  the  application  fails  and  must  be  refused  with  costs. 

From  this  decision  the  defendant  Davis  appealed. 

ZT.  Terrell  for  the  appellant. 

W.  Pearson^  QC.,  and  Bray  for  the  plaintiffs  were  not  called  on. 

Cotton,  L.J.  This  is  an  appeal  from  a  decision  of  Stirling,  J., 
who  refused  the  application  now  brought  before  us  again  on  ap- 
peal. The  application  itself  is  of  a  somewhat  curious  character, 
though  I  will  not  myself  rely  on  the  particular  terms  of  it.  It 
is  asking  that  a  gentleman  to  whom  the  appellant  has  delivered 
up  certificates  of  the  Taxing  Master  should  be  ordered  to  pro- 
duce them  in  order  that  the  appellant  may  make  them  effectual 
against  the  clients  of  the  solicitor,  who  were  the  plaintiffs  in  the 
action,  in  order  to  get  interest  on  his  costs. 

It  appears  that  there  was  an  order  made  for  the  plaintiffs  to 
pay  the  costs.  There  were  two  certificates  of  the  Master,  one 
for  the  costs  in  the  Court  below,  the  other  for  the  costs  in  the 
Court  of  Appeal,  and  when  the  certificates  were  obtained,  but 
before  they  were  filed,  the  solicitor  acting  for  the  plaintiffs  very 
reasonably  wrote  and  sent  to  the  solicitor  of  the  defendant  a 
letter  asking  him  not  to  incur  the  expense  of  filing  the  certifi- 
cates ;  and  I  think  also  he  made  some  suggestion  that  he  might 
dispute  the  amount  for  which  the  costs  were  to  be  taxed.  How- 
ever, the  defendant's  solicitor  called  on  him,  and  then  the  plain- 
tiffs' solicitor  paid  him  with  his  own  check  the  amount  of  each 
of  the  certificates,  less  los.  It  is  said  by  the  defendant  that 
that  JOS.  was  taken  off  in  order  to  remove  the  item  for  filing  the 
certificate.  Whether  that  is  so  or  not  is  immaterial.  The  sum 
was  taken  off,  and  on  the  check  being  handed  over  by  the  plain- 
tiffs' solicitor,  the  defendant's  solicitor  handed  over  to  the  plain- 
tiffs' solicitor  those  two  certificates  with  receipts  endorsed  on 
them. 

Now  what  we  have  to  consider  is  this,  what  was  the  agree- 
ment entered  into  on  that  occasion  ?  and,  secondly,  was  there 
any  consideration  for  it  ?  Now,  in  my  opinion,  the  agreement 
is  clear.  It  is  very  true  that  the  endorsement  upon  the  certifi- 
cates is  in  this  form  :  "  Received  by  check  the  within  mentioned 
costs,  p^6o9  55.  2(1.,  less  10^.  remitted."  The  amount  of  course 
being  different  on  the  two  certificates.  What  was  the  meaning 
of  that  ?  It  was  not  necessary  that  the  agreement  should  be  in 
writing.  The  meaning  was  that  the  defendant's  solicitor  should 
give  up  all  his  claim,  whatever  it  was,  under  those  certificates 
on  receiving  from  the  plaintiffs'  solicitor  the  check  for  the 
amount  mentioned  in  the  two  certificates.  It  is  said  he  never* 
intended  to  give  up  any  interest.     I  quite  believe  he  did  not 


426  BIDDER   7'.    BRIDGES.  [CHAP.  I. 

know  anything  about  interest  then,  or  think  that  he  was  entitled 

to  it  •  but  if,  in  fact,  he  was  entitled  to  interest  on  these  certifi- 

//  cates  at  the  date  of  the  judgment,  and  gave  up  all  his  claim 

)  \  under  the  certificates,  then,  in   my  opinion,  he  gave  up,  if  there 

i  was  good  consideration,  all  those  matters  which  he  could,  with- 

'  out  anything  further,  obtain  on  those  certificates,  even  though 

he  did  not  know  the  law  which  would  give  him  interest.      Of 

course  ignorance  of  general  law  will  not  excuse  any  man  when 

he  enters  into  an  agreement. 

But  it  is  said  that  our  decision  to  that  effect  would  be  a  con- 
tradiction of  Foakes  v.  Beer.'  If  so,  that  is  a  decision  of  the 
House  of  Lords,  and  we  must  follow  it,  though  I  must  say  for 
myself  that  where  the  House  of  Lords  has  come  to  a  particular 
construction  on  an  instrument,  1  should  not  feel  myself  bound 
to  follow  their  decision  by  putting  a  construction  on  a  different 
instrument  which  I  did  not  think  the  correct  construction  of 
that  instrument.  We  must  follow  of  course  the  rules  which 
they  lay  down  in  order  to  decide  what  is  to  be  the  principle  of 
construction.  All  that  Earl  Selborne  decided  there  (and  none 
of  the  other  Lords  who  delivered  their  opinions  differed  from 
it)  was  that,  looking  at  the  words  of  the  agreement,  which  was 
reduced  into  writing  in  that  case,  one  could  only  take  it  as  an 
agreement  to  receive  the  sum  of  money  and  the  instalments 
therein  mentioned,  in  consideration  of  the  principal  sum  which 
was  due,  and  nothing  more  ;  and  that  to  give  it  a  different 
construction  would  be  to  add  to  that  written  agreement,  which 
apparently  fully  expressed  the  intention  of  the  parties,  words 
which  were  not  there — namely,  "interest  on  those  sums." 
That  is  an  entirely  different  matter.  What  is  the  agreement 
between  the  parties  as  shown  by  their  acts  ?  In  my  opinion  the 
I  agreement  was  here  to  give  up  all  claim  in  respect  to  the  mat- 
1  ters  mentioned  in  the  certificates — that  is,  in  respect  of  those 
'  certificates. 

But  then  we  come  to  another  point  which  was  entered  into 
very  fully  by  Stirling,  J.  Was  there  a  consideration  ?  Now  I 
think  the  law  is  generally  reasonable,  but  whether  Cumber  v. 
Wane"  was  reasonable  we  have  not  to  consider.  There  is  a 
qualification  of  the  rule  there  laid  down  by  judges  (whose  de- 
cisions we  ought  not  to  disregard  here),  by  making  exceptions 
which  will  reduce  that  case  to  something  like  principle.  They 
lay  down  this,  that  though  the  payment  of  a  smaller  sum  can- 
not be  a  good  consideration  for  accord  and  satisfaction  of  a 
claim  for  a  larger  one,  yet  if  there  is  anything  which  can  be  a 
new  consideration  and  a  new  benefit  to  the  person  entitled  to 
'  9  App.  Cas.  605.  ^  I  Str.  426. 


SEC.  U(i.]  BIDDER   V.    BRIDGES.  427 

the  larger  sum,  that  will  do  ;  and  the  only  thing  we  have  to 
consider  is  whether  here  in  this  case  there  was  anything  which 
could  be  a  new  consideration,  that  is  some  new  and  different 
benefit  to  the  person  entitled  to  the  larger  sum  of  money. 
Those  cases  which  I  have  mentioned  go  particularly  to  this, 
that  if  there  is  a  promissory  note,  a  negotiable  instrument,  for 
a  smaller  sum,  that  may  do.  The  first  of  those  cases  relied 
upon  on  this  point  goes  to  this,  that  even  if  it  is  a  promissory  i 
note  signed  by  the  person  who  is  liable  for  the  larger  sum,  that 
wrill  do.  But  here  that  is  not  the  case.  Here  the  solicitor  him- 
self gives  his  check  for  this  amount.  It  is  very  true  he  was 
paying  it  on  behalf  of  his  client,  but  not  paying  it  so  as  to  make 
his  act  in  signing  that  check  the  act  of  his  client.  He  gave  the 
check  and  became  personally  responsible  for  it,  though,  un- 
doubtedly, he  had  a  right  of  indemnity  as  against  his  client  to 
be  paid  by  him  whatever  he  might  pay  on  that  promissory  note. 
That  being  so,  in  my  opinion,  having  regard  to  the  cases  which 
have  qualified  Cumber  v.  Wane,'  and  not  inconsistently  with 
Foakes  v.  Beer,"  we  are  justified  in  holding  that  there  was  suffi- 
cient consideration  for  the  agreement  between  the  solicitor  of 
the  defendant  and  the  solicitor  of  the  plaintiffs  to  support  the 
contract  to  which  I  have  referred.   In  my  opinion  the  appeal  fails. 

LiNDLEY,  L.J.  I  am  of  the  same  opinion.  The  application 
to  the  Court  is  that  the  Court  may  order  the  plaintiffs  to  pro- 
duce to  a  proper  officer  of  the  Royal  Courts  certain  certificates 
of  the  Taxing  Master  for  the  purpose  of  enabling  the  appellant 
to  issue  a  writ  of  execution  ox  fi.  fa.  When  you  come  to  look 
at  the  substance  of  the  thing  it  is  rather  curious.  The  action 
of  Bidder  v.  Bridges  having  been  dismissed  with  costs,  Mr. 
Davis,  who  was  one  of  the  defendants,  was  entitled  to  receive 
his  costs,  and  the  costs  were  taxed,  and  on  May  28th,  1887,  Mr. 
Davis's  solicitor  met  the  plaintiffs'  solicitor,  and  then  the  plain- 
tiffs' solicitor  gave  Mr.  Davis's  solicitor  a  check  for  Mr.  Davis's 
costs,  and  upon  that  occasion  it  was  agreed  that  the  certificates 
should  not  be  filed.  There  was  some  little  expense  about  it 
which  it  was  wished  to  avoid. 

We  are  asked  to  undo  that  transaction,  and  to  compel  the 
plaintiffs'  solicitor,  who  has  got  these  certificates  under  that 
arrangement,  to  produce  them,  in  order  that  further  steps  may 
be  taken  upon  them,  and  that  interest  may  be  obtained.  What 
legal  ground  is  there  for  interfering  at  all  ?  In  other  words, 
upon  what  principle  should  the  Court  order  the  plaintiffs'  solici- 
tor to  produce  these  documents  ?  He  has  got  them  fairly  and 
properly  pursuant  to  an  agreement.  There  has  been  no  fraud, 
'  I  Str.  426.  *  9  App.  Cas.  605. 


428  BIDDER   V.    BRIDGES.  [cHAP.  I. 

no  trick,  no  concealment,  nor  anything  of  the  kind.     When  you 

,    come  to  sift  it,  the  ground  must  be  reduced  to  this,  that  Mr. 

Russ  forgot  all  about  the  interest.     Is  that  enough  ?     Is  not 

that  precisely  relying  upon  a  mistake  in  law  for  further  relief 

where  there  is  no  equitable  element  as  distinguished  from  legal  ? 

Looking  at  the  matter  in   that  way  it  seems  to  me  there  is  no 

ground  in  point  of  law  for  this  application  at  all.     I  am  not 

going  to  spend  time  in  discussing  Pinnel's  Case,*  and  Cumber  7'. 

Wane,"  and  that  class  of  case.     It  appears  to  me  that,  for  the 

reasons  given  by  Cotton,  L.J.,  we  are  outside  those  cases,  and 

I  have  looked  at  the  matter  apart  from  all  technicalities.     It 

strikes  me  this  is  an  attempt  without  any  sufficient  ground  to 

I  undo  a  bona  fide  settlement,  and  I   think  the  appeal  ought  to  be 

'  dismissed  with  costs. 

Lopes,  L.J.     I  take  it  the  law  is  quite  clear  that  the  payment 
of  a  smaller  sum  cannot  be  pleaded  as  accord  and  satisfaction 
to  a  claim  for  a  larger  sum  ;  it  is  only  a  payment /;-<?  tanto.     In 
Cumber  v.  Wane  it  was  laid  down  that  giving  a  promissory  note 
(  for  ;;^5  could  not  be  pleaded  as  accord  and  satisfaction  where 
\  the  claim  was  for  a  debt  of  ;^i5,  but  that  decision  was  modified 
[by  the  case  of  Sibree  v.  Tripp, ^  where  it  was  held  that  a  negoti- 
able security  may  operate,  if  so  given  and  taken,  in  satisfaction 
I  of  a  debt  of  greater  amount  ;  the  circumstance  of  negotiability 
\  \  making  it,   in   fact,   a  different  thing  and   more  advantageous 
than  the  original  debt,  which  was  not  negotiable. 

Now  it  is  also  law  that  the  giving  of  a  negotiable  instrument 
for  a  smaller  sum  by  a  third  party  would  support  accord  and 
satisfaction.  The  principle  which  runs  through  all  the  cases  is 
this,  that  there  is  a  possibility  of  a  benefit  accruing  to  the  cred- 
itor which  is  the  consideration,  for  the  relinquishment  of  the 
residue  of  the  debt. 

Now,  applying  that  principle  to  the  present  case,  I  think  here 
that  the  certificates  were  given  up,  and  the  check  taken  upon 
an  understanding  that  all  other  claim  was  relinquished  and 
given  up.  We  must  look  at  the  intention  of  the  parties  at  the 
time.  According  to  my  view,  that  was  their  then  intention. 
In  point  of  fact,  they  neither  of  them  thought  of  the  interest, 
and  they  intended  at  that  time  that  what  was  then  done  should 
put  an  end  to  all  the  claims  arising  from  that  judgment.  It  so 
happens  that  since  that  a  case  has  been  decided  which  has 
brought  to  the  attention  of  the  applicant  here  that  he  might 
have  claimed  interest  on  his  costs;  but  he  cannot  now  turn 
round  and  make  that  claim.  I  think  the  decision  of  Stirling,  J., 
was  quite  right. 

'-  5  Rep.  1 17a.  »  I  Str.  426.  »  15  M.  &  W.  23. 


A 


SEC.  ud.]  JAFFRAY  r/  a/.  V.  DAVIS  ct  al.  429 


EDWARD    S.   JAFFRAY    et  al.,    Respondents,    v.    SEIG- 
FRIED    DAVIS  et  al.,   Appellants. 

In  the  Court  of  Appeals  of  New  York,  January  14,  1891. 
[Reported  in  124  New  York  Reports  164.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  upon  an  order 
made  May  21st,  1888,  which  affirmed  a  judgment  in  favor  of  plain- 
tiff entered  upon  a  decision  of  the  Court  on  trial  without  a  jury. 

This  was  an  action  to  recover  a  balance  claimed  to  be  due 
upon  an  indebtedness. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

O.  F.   Wisner  for  appellants. 

Isaac  L.  Miller  for  respondents. 

Potter,  J.  The  facts  found  by  the  trial  Court  in  this  case 
were  agreed  upon.  They  are  simple  and  present  a  familiar  ques- 
tion of  law.  The  facts  are  that  defendants  were  owing  plain- 
tiffs on  December  8th,  1886,  for  goods  sold  between  that  date 
and  the  May  previous  at  an  agreed  price,  the  sum  of  $7714.37, 
and  that  on  the  27th  of  the  same  December  the  defendants 
delivered  to  the  plaintiffs  their  three  promissory  notes,  amount- 
ing in  the  aggregate  to  $3462.24,  secured  by  a  chattel  mortgage  on 
the  stock,  fixtures,  and  other  property  of  defendants,  located  in 
East  Saginaw,  Mich.,  which  said  notes  and  chattel  mortgage 
were  received  by  plaintiffs  under  an  agreement  to  accept  same 
in  full  satisfaction  and  discharge  of  said  indebtedness.  "  That 
said  notes  have  all  been  paid  and  said  mortgage  discharged  of 
record." 

The  question  of  law  arising  from  these  facts  and  presented  to 
this  Court  for  its  determination  is  whether  such  agreement, 
with  full  performance,  constitutes  a  bar  to  this  action,  which 
was  brought  after  such  performance  to  recover  the  balance  of 
such  indebtedness  over  the  sum  so  secured  and  paid. 

One  of  the  elements  embraced  in  the  question  presented  upon 
this  appeal  is — viz.,  whether  the  payment  of  a  sum  less  than 
the  amount  of  a  liquidated  debt  under  an  agreement  to  accept 
the  same  in  satisfaction  of  such  debt  forms  a  bar  to  the  recovery 
of  the  balance  of  the  debt.-  This  single  question  was  presented 
to  the  English  Court  in  1602,  when  it  was  resolved  (if  not  de- 
cided) in  Pinnel's  Case  (5th  Co.  R.  117),  "  that  payment  of  a 
lesser  sum  on  the  day  in  satisfaction  of  a  greater,  cannot  be  any 
satisfaction  for  the  whole,"  and  that  this  is  so,  although  it  was 
agreed  that  such  payment  should   satisfy  the  whole.     This  sim- 


430 


JAFFRAV  ct  al.   V.  DAVIS  et  al.  [CH. 


pie  question  has  since  arisen  in  the  English  courts  and  in  the 
courts  of  this  country  in  almost  numberless  instances,  and  has 
received  the  same  solution,  notwithstanding  the  courts,  while 
so  ruling,  have  rarely  failed,  upon  any  recurrence  of  the  ques- 
tion, to  criticise  and  condemn  its  reasonableness,  justice,  fair- 
ness, or  honesty.  No  respectable  authority  that  I  have  been 
able  to  find  has,  after  such  unanimous  disapproval  by  all  the 
courts,  held  otherwise  than  was  held  in  Pinnel's  Case  {supra) 
and  Cumber  v.  Wane  (i  Str.  426)  ;  Foakes  v.  Beer  (L.  R. 
[9  App.  Cas.]  605  ;  Tfi  English  Reports,  194)  ;  Goddard  v. 
O'Brien  (L.  R.  [9  Q.  B.  Div.]  37  ;  Vol.  30,  Am.  Law  Register, 
637,  and  notes). 

The  steadfast  adhesion  to  this  doctrine  by  the  courts  in  spite 
of  the  current  of  condemnation  by  the  individual  judges  of  the 
Courts  and  in  the  face  of  the  demands  and  conveniences  of  a 
much  greater  business  and  more  extensive  mercantile  dealings 
and  operations,  demonstrate  the  force  of  the  doctrine  of  stare 
decisis.  But  the  doctrine  of  stare  decisis  is  further  illustrated  by 
the  course  of  judicial  decisions  upon  this  subject,  for  while  the 
courts  still  hold  to  the  doctrine  of  the  Pinnel  and  Cumber  and 
Wane  cases  {supra),  they  have  seemed  to  seize  with  avidity  upon 
any  consideration  to  support  the  agreement  to  accept  the  lesser 
sum  in  satisfaction  of  the  larger,  or,  in  other  words,  to  extract, 
if  possible,  from  the  circumstances  of  each  case  a  consideration 
for  the  new  agreement,  and  to  substitute  the  new  agreement  in 
place  of  the  old,  and  thus  to  form  a  defence  to  the  action  brought 
upon  the  old  agreement.  It  will  serve  the  purpose  of  illustrating 
the  adhesion  of  the  Court  to  settled  law,  and  at  the  same  time 
enable  us  perhaps  more  satisfactorily  to  decide  whether  there 
was  a  good  consideration  to  support  the  agreement  in  this  case, 
to  refer  to  the  consideration  in  a  few  of  the  numerous  cases 
which  the  courts  have  held  to  be  sufficient  to  support  the  new 
agreement. 

Lord  Blackburn  said  in  his  opinion  in  Foakes  tK  Beer  {supra), 
and  while  maintaining  the  doctrine  "  that  a  lesser  sum  cannot 
be  a  satisfaction  of  a  greater  sum/'  "  but  the  gift  of  a  horse, 
hawk,  or  robe,  etc.,  in  satisfaction  is  good,"  quite  regardless 
of  the  amount  of  the  debt.  And  it  was  further  said  by  him  in 
the  same  opinion  "  that  payment  and  acceptance  of  a  parcel 
before  the  day  of  payment  of  a  larger  sum  would  be  a  good 
satisfaction  in  regard  to  the  circumstance  of  time,"  "  and  so  if 
I  am  bound  in  .;^2o  to  pay  you  ^^^lo  at  Westminster,  and  you 
request  me  to  pay  you  ;£^  at  the  day  at  York,  and  you  will 
accept  it  in  full  satisfaction  for  the  whole  p^io,  it  is  a  good  sat- 
isfaction."    It  was  held  in  Goddard  v.  O'Brien  (L.  R.  [9  O.  B. 


SEC.   Ilfl'.]  JAFFRAY    ct    al.    V.    DAVIS    ct   al.  43 1 

Div.]  37  ;  21  Am.  L.  Reg.  [N.  S.]  637)  "  A.  being  indebted  lo  D. 
in  ^125  IS.  gd.  for  goods  sold  and  delivered,  gave  B.  a  check 
(negotiable,  I  suppose)  for  ^100  payable  on  demand,  which  B. 
accepted  in  satisfaction,  was  a  good  satisfaction."  Huddle- 
ston,  B.,  in  Goddard  v.  O'Brien  {supra),  approved  the  language 
of  the  opinion  in  Sibree  v.  Tripp  (15  M.  &  W.  26),  "  that  a 
negotiable  security  may  operate,  if  so  given  and  taken,  in  satis- 
faction of  a  debt  of  a  greater  amount  ;  the  circumstance  of 
negotiability  making  it,  in  fact,  a  different  thing  and  more  ad- 
vantageous than  the  original  debt,  which  was  not  negotiable." 

It  was  held  in  Bull  v.  Bull  (43  Conn.  455),  "  and  although  the 
claim  is  a  money  demand  liquidated  and  not  doubtful,  and  it 
cannot  be  satisfied  with  a  smaller  sum  of  money,  yet  if  any 
other  personal  property  is  received  in  satisfaction,  it  will  be 
good  no  matter  what  the  value." 

And  it  was  held  in  Cumber  v.  Wane  [supra),  that  a  creditor 
can  never  bind  himself  by  simple  agreement  to  accept  a  smaller 
sum  in  lieu  of  an  ascertained  debt  of  a  larger  amount,  such 
agreement  being  nudum  pactum,  but  if  there  be  any  benefit  or 
even  any  legal  possibility  of  benefit  to  the  creditor  thrown  in, 
that  additional  weight  will  turn  the  scale  and  render  the  con- 
sideration sufBcient  to  support  the  agreement. 

It  was  held  in  La  Page  v.  McCrea  (i  Wend.  164),  and  in 
Boyd  V.  Hitchcock  (20  Johns.  76),  that  "  giving  further  security 
for  part  of  a  debt  or  other  security,  though  for  a  less  sum  than 
the  debt  and  acceptance  of  it  in  full  of  all  demands,  make  a 
valid  accord  and  satisfaction." 

That  "  if  a  debtor  gives  his  creditor  a  note  endorsed  by  a 
third  party  for  a  less  sum  than  the  debt  (no  matter  how  much 
less),  but  in  full  satisfaction  of  the  debt,  and  it  is  received  as 
such,  the  transaction  constitutes  a  good  accord  and  satisfac- 
tion." (Varney  v.  Commey,  3  East,  25.)  And  so  it  has  been 
held  "  where  by  mode  or  time  of  part  payment,  different  than 
that  provided  for  in  the  contract,  a  new  benefit  is  or  may  be 
conferred  or  a  burden  imposed,  a  new  consideration  arises  out 
of  the  transaction  and  gives  validity  to  the  agreement  of  the 
creditor"  (Rose  v.  Hall,  26  Conn.  392),  and  so  if  "  payment  of 
less  than  the  whole  debt,  if  made  before  it  is  due  or  at  a  differ- 
ent place  from  that  stipulated,  if  received  in  full,  is  a  good  sat- 
isfaction." (Jones  V.  Bullitts,  2  Lit.  49  ;  Ricketts  v.  Hall, 
2  Bush.  249  ;  Smith  v.  Brown,  3  Hawks.  [N.  C]  580  ;  Jones  v. 
Perkins,  29  Miss.  139  ;  Schweider  v.  Lang,  29  Minn.  254  ; 
43  Am.  R.  202.) 

In  Watson  v.  Elliott  (57  N.  H.  511-513),  it  was  held,  "it  is 
enough   that    something    substantial,    which    one    party   is   not 


432  JAFFRAY  ct  al.  V.  DAVIS  et  al.  [chap,  l 

bound  by  law  to  do,  is  done  by  him  or  something  which  he  has 
a  right  to  do  he  abstains  from  doing  at  the  request  of  the  other 
party,  is  held  a  good  satisfaction." 

It  has  been  held  in  a  number  of  cases  that  if  a  note  be  sur- 
rendered (by  the  payee  to  the  maker),  the  whole  claim  is  dis- 
charged and  no  action  can  afterward  be  maintained  on  such 
instrument  for  the  unpaid  balance.  (Ellsworth  v.  Fogg,  35  Vt. 
355  ;  Kent  v.  Reynolds,  8  Hun,  559.) 

It  has  been  held  that  a  partial  payment  made  to  another, 
though  at  the  creditor's  instance  and  request,  is  a  good  dis- 
charge of  the  whole  debt.  (Harper  v.  Graham,  20  Ohio,  106.) 
"  The  reason  of  the  rule  is  that  the  debtor  in  such  case  has 
done  something  more  than  he  was  originally  bound  to  do  or  at 
least  something  different  It  may  be  more  or  it  may  be  less,  as 
a  matter  of  fact." 

It  was  held  by  the  Supreme  Court  of  Pennsylvania  in 
Mechanics'  Bank  v.  Houston  (February  13th,  1882,  11  W.  Note, 
case  389),  "  The  decided  advantage  which  a  creditor  acquires 
by  the  receipt  of  a  negotiable  note  for  a  part  of  his  debt,  is 
by  the  increased  facilities  of  recovering  upon  it,  the  presump- 
tion of  a  consideration  for  it,  the  ease  of  disposing  of  it  in 
market,"  etc.,  was  held  to  furnish  ample  reason  why  it  should 
be  a  valid  discharge  of  a  larger  account  or  open  claim  unnego- 
tiable. 

It  has  been  held  that  a  payment  in  advance  of  the  time  if 
agreed  to  is  full  satisfaction  for  a  larger  claim  not  yet  due. 
(Brooks  V.  White,  2   Met.  283  ;  Bowker  v.  Childs,  3  Allen,  434.) 

In  some  States,  notably  Maine  and  Georgia,  the  legislature, 
in  order  to  avoid  the  harshness  of  the  rule  under  consideration, 
have  by  statute  changed  the  law  upon  that  subject  by  provid- 
ing, "  no  action  can  be  maintained  upon  a  demand  which  has 
been  cancelled  by  the  receipt  of  any  sum  of  money  less  than  the 
amount  legally  due  thereon,  or  for  any  good  and  valuable  con- 
sideration, however  small."  (Citing  Weymouth  v.  Babcock, 
42  Maine,  42.) 

And  so  in  Gray  v.  Barton  (55  N.  Y.  68),  where  a  debt  of  $820 
upon  book  account  was  satisfied  by  the  payment  of  $1  by  call- 
ing the  balance  a  gift,  though  the  balance  was  not  delivered  ex- 
cept by  fiction,  and  the  receipt  was  in  the  usual  form  and  was 
silent  upon  the  subject  of  a  gift,  and  this  case  was  followed  and 
referred  to  in  Ferry  v.  Stephens  (66  N.  Y.  321). 

So  it  was  held  in  Mitchell  v.  Wheaton  (46  Conn.  315  ;  33  Am.  R. 
24),  that  the  debtor's  agreement  to  pay  and  the  payment  of  $150 
with  the  costs  of  the  suit  upon  a  liquidated  debt  of  $299  satis- 
fied the  principal  debt. 


SEC.  11^.]  JAFFRAY   tt  al.    V.    DAVIS   ct   al.  433 

These  cases  show  in  a  striking  manner  the  extreme  ingenuity 
and  assiduity  which  the  courts  have  exercised  to  avoid  the 
operation  of  the  "  rigid  and  rather  unreasonable  rule  of  the  old 
law,"  as  it  is  characterized  in  Johnston  v.  Brannan  (5  Johns. 
268-272),  or  as  it  is  called  in  Kellogg  v.  Richards  (14  Wend. 
116),  "  technical  and  not  very  well  supported  by  reason,"  or,  as 
may  be  more  practically  stated,  a  rule  that  "  a  bar  of  gold 
worth  $100  will  discharge  a  debt  of  $500,  while  400  gold 
dollars  in  current  coin  will  not."  (See  note  to  Goddard  v. 
O'Brien,  st/pra,  in  A.  Law  Register,  New  Series,  Vol.  XXI.,  pp. 
640,  641.) 

The  state  of  the  law  upon  this  subject,  under  the  modification 
of  later  decisions  both  in  England  and  in  this  country,  would 
seem  to  be  as  expressed  in  Goddard  v.  O'Brien  (Queen's  Bench 
Division,  siipra).  "  The  doctrine  in  Cumber  v.  Wane  is  no 
doubt  very  much  qualified  by  Sibree  v.  Tripp,  and  I  cannot  find 
it  better  stated  than  in  ist  Smith's  Leading  Cases  [7th  ed.] 
595."  The  general  doctrine  in  Cumber  v.  Wane,  and  the  reason 
of  all  the  exceptions  and  distinctions  which  have  been  engraved 
on  it,  may  perhaps  be  summed  up  as  follows — viz.:  "That  a 
creditor  cannot  bind  himself  by  a  simple  agreement  to  accept  a 
smaller  sum  in  view  of  an  ascertained  debt  of  larger  amount, 
such  an  agreement  being  nudum  factum.  But  if  there  be  any 
benefit  or  even  any  legal  possibility  of  benefit  to  the  creditor 
thrown  in,  that  additional  weight  will  turn  the  scale  and  render 
the  consideration  sufficient  to  support  the  agreement."  (Bull  v. 
Bull,  43  Conn.  455  ;  Fisher  v.  May,  2  Bibb.  449  ;  Reed  v.  Bart- 
lett,  J9  Pick.  273;  Union  Bank  v.  Geary,  5  Peters,  99-114; 
La  Fcgez'.  McCrea,  i  Wend.  164  ;  Boyd  v.  Hitchcock,  20  Johns. 
76  ;  Brooks  v.  White,  2  Mete.  283  ;  Jones  v.  Perkins,  29  Miss. 
139-141  ;  Hall  V.  Smith,  15  Iowa,  584  ;  Babcock  v.  Hawkins, 
23  Vt.  561.) 

In  the  case  at  bar  the  defendants  gave  their  promissory  notes 
upon  time  for  one  half  of  the  debt  they  owed  plaintiff,  and  also 
gave  plaintiff  a  chattel  mortgage  on  the  stock,  fixtures,  and 
other  personal  property  of  the  defendants  under  an  agreement 
■with  plaintiff,  to  accept  the  same  in  full  satisfaction  and  dis- 
charge of  said  indebtedness.  Defendants  paid  the  notes  as  they 
became  due,  and  plaintiff  then  discharged  the  mortgage.  Un- 
der the  cases  above  cited,  and  upon  principle,  this  new  agree- 
ment was  supported  by  a  sufficient  consideration  to  make  it  a 
valid  agreement,  and  this  agreement  was  by  the  parties  sub- 
stituted in  place  of  the  former.  The  consideration  of  the  new 
agreement  was  that  the  plaintiff,  in  place  of  an  open  book 
account  for  goods  sold,  got  the  defendants'  promissory  notes, 


,j.34  JAFFRAY  et  al.  V.  DAVIS  et  al.  [chap,  i. 

probably  negotiable  in  form,  signed  by  defendants,  thus  saving 
the  plaintiff  perhaps  trouble  or  expense  of  proving  their  account^ 
and  got  security  upon  all  the  defendants'  personal  property  for 
the  payment  of  the  sum  specified  in  the  notes,  where  before 
they  had  no  security. 

It  was  some  trouble  at  least,  and  perhaps  some  expense  to 
the  defendants  to  execute  and  deliver  the  security,  and  they 
deprived  themselves  of  the  legal  ownership,  or  of  any  exemp- 
tions or  the  power  of  disposing  of  this  property,  and  gave  the 
plaintiff  such  ownership  as  against  the  defendants,  and  the 
claims  thereto  of  defendants'  creditors,  if  there  were  any. 

It  seems  to  me,  upon  principle  and  the  decisions  of  this  State 
(save  perhaps  Keeler  v.  Salisbury,  n  N.  Y.  653,  and  Platts  v. 
Walrath,  Lalor's  Supp.  59,  which  I  will  notice  further  on)^ 
and  of  quite  all  of  the  other  States,  the  transactions  between 
the  plaintiff  and  the  defendants  constitute  a  bar  to  this  action. 
All  that  is  necessary  to  produce  satisfaction  of  the  former  agree- 
ment is  a  sufficient  consideration  to  support  the  substituted 
agreement.  The  doctrine  is  fully  sustained  in  the  opinion  of 
Andrews,  J.,  in  Allison  v.  Abendroth  (108  N.  Y.  470),  from 
which  I  quote  :  "  But  it  is  held  that  where  there  is  an  inde- 
pendent consideration,  or  the  creditor  receives  any  benefit  or  is 
put  in  a  better  position,  or  one  from  which  there  may  be  legal 
possibility  of  benefit  to  which  he  was  not  entitled  except  for 
the  agreement,  then  the  agreement  is  not  nudum  pactum^  and  the 
doctrine  of  the  common  law  to  which  we  had  adverted  has  no 
application."  Upon  this  distinction  the  cases  rest  which  hold 
that  the  acceptance  by  the  creditor  in  discharge  of  the  debt  of 
a  different  thing  from  that  contracted  to  be  paid,  although  of 
much  less  pecuniary  value  or  amount,  is  a  good  satisfaction,  as, 
for  example,  a  negotiable  instrument  binding  the  debtor  and  a 
third  person  for  a  smaller  sum.  (Curlewis  v.  Clark,  3  Exch. 
375.)  Following  the  same  principle,  it  is  held  that  when  the 
debtor  enters  into  a  new  contract  with  the  creditor  to  do  some- 
thing which  he  was  not  bound  to  do  by  the  original  contract, 
the  new  contract  is  a  good  accord  and  satisfaction  if  so  agreed. 
The  case  of  accepting  the  sole  liability  of  one  of  two  joint 
debtors  or  copartners  in  satisfaction  of  the  joint  or  copartner- 
ship debt  is  an  illustration.  This  is  held  to  be  a  good  satisfac- 
tion, because  the  sole  liability  of  one  of  two  debtors  "  may  be 
more  beneficial  than  the  joint  liability  of  both,  either  in  respect 
of  the  solvency  or  of  the  parties,  or  the  convenience  of  the 
remedy."  (Thompson  v.  Percival,  5  B.  &  Adol.  925.)  In  per- 
fect accord  with  this  principle  is  the  recent  case  in  this  Court 
of  Ludington  v.  Bell   (77   N.  Y.  138),  in  which  it  was  held  that 


I 


SEC.  ud.]  JAFFRAY  ef  a/.  V.  DAVIS  c'  al.  435 

the  acceptance  by  a  creditor  of  the  individual  note  of  one  of  the 
members  of  a  copartnership  after  dissolution  for  a  portion  of 
the  copartnership  debt  was  a  good  consideration  for  the  cred- 
itor's agreement  to  discharge  the  maker  from  further  liability. 
(Pardee  v.  Wood,  8  Hun,  584  ;  Douglass  v.  White,  3  Barb.  Chy. 
621-624.) 

Notwithstanding  these  later  and  decisive  authorities,  the 
plaintiff  contends  that  the  giving  of  the  defendants'  notes  with 
the  chattel  mortgage  security  and  the  payment,  such  considera- 
tion was  insufhcient  to  support  the  new  or  substituted  agree- 
ment, and  cites  as  authority  for  such  contention  the  cases  of 
Platts  V.  Walrath  (Lalor's  Supp.  59),  and  Keeler  v.  Salisbury 
{11  N.  Y.  648). 

Platts  V.  Walrath  arose  in  Justice  Court,  and  the  debt  in  con- 
troversy was  put  forth  as  a  set-off.  The  remarks  of  the  judge 
in  the  former  case  were  quite  obiter,  for  there  were  various  sub- 
jects in  dispute  upon  the  trial,  and  from  which  the  justice  might 
have  reached  the  conclusion  that  he  did.  The  judge  in  the 
opinion  relied  upon  says  :  "  Looking  at  the  loose  and  secondary 
character  of  the  evidence  as  stated  in  the  return,  it  was  perhaps 
a  question  of  fact  whether  any  mortgage  at  all  was  given  ;  or, 
at  least,  whether,  if  given,  it  was  not  in  terms  a  mere  collateral 
security  for  the  large  note,"  "  even  the  mortgagee  was  left  to 
parol  proof.  Did  it  refer  to  and  profess  to  be  a  security  for  the 
note  of  $1500,  or  that  sum  less  the  $50  agreed  to  be  thrown  off, 
etc.?" 

There  is  so  much  confusion  and  uncertainty  in  the  case  that 
it  was  not  thought  advisable  to  publish  the  case  in  the  regular 
series  of  reports.  The  case  of  Keeler  v.  Salisbury  {supra)  is 
not  to  be  regarded  as  an  authority  upon  the  question  or  as 
approving  the  case  of  Platts  v.  Walrath  {supra).  In  the  case  of 
Keeler  v.  Salisbury,  the  debtor's  wife  had  joined  in  the  mort- 
gage given  by  her  husband,  the  debtor,  to  effect  the  compro- 
mise, thus  releasing  her  inchoate  right  of  dower.  The  Court 
held  that  fact  constituted  a  sufficient  consideration  to  support 
the  new  agreement,  though  the  Court  in  the  course  of  the  opin- 
ion remarked  that  it  had  been  held  that  the  debtor's  mortgage 
would  not  be  sufficient,  and  referring  to  Platts  v.  Walrath. 
But  the  Court  did  not  otherwise  indicate  any  approval  of  that 
case,  and  there  was  no  occasion  to  do  so,  for,  as  before  stated, 
the  Court  put  its  decision  upon  the  fact  that  the  wife  had  joined 
in  the  mortgage. 

In  view  of  the  peculiar  facts  in  these  two  cases  and  the  numer- 
ous decisions  of  this  and  other  courts  hereinbefore  referred  to, 
I  do  not  regard  them  as  authorities  against  the  defendant's  con- 


436  STILK   V.    MYRICK.  [CHAP.  I. 

tention  that  the  plaintiff's  action  for  the  balance  of  the  original 
debt  is  barred  by  reason  of  the  accord  and  satisfaction,  and  that 
the  judgment  should  be  reversed,  with  costs. 

All  concur. 

Judgment  reversed. 


STILK  V.  MYRICK. 

In  the  Common  Pleas,  December  16,  1809. 

[Reported  hi  2  Ca^npb ell  2,11 -^ 

This  was  an  action  for  seaman's  wages,  on  a  voyage  from 
London  to  the  Baltic  and  back. 

By  the  ship's  articles,  executed  before  the  commencement  of 
the  voyage,  the  plaintiff  was  to  be  paid  at  the  rate  of  ^5  a 
month  ;  and  the  principal  question  in  the  cause  was,  whether 
he  was  entitled  to  a  higher  rate  of  wages.  In  the  course  of  the 
voyage  two  of  the  seamen  deserted,  and  the  captain,  having  in 
vain  attempted  to  supply  their  places  at  Cronstadt,  there  en- 
tered into  an  agreement  with  the  rest  of  the  crew,  that  they 
should  have  the  wages  of  the  two  who  had  deserted  equally 
divided  among  them  if  he  could  not  procure  two  other  hands  at 
Gottenburgh.  This  was  found  impossible,  and  the  ship  was 
worked  back  to  London  by  the  plaintiff  and  eight  more  of  the 
original  crew,  with  whom  the  agreement  had  been  made  at 
Cronstadt. 

Garroiv  for  the  defendant. 

Attoj-ney-  General,  contra. 

Lord  Ellenborough.  I  think  Harris  v.  Watson  was  rightly 
decided  ;  but  I  doubt  whether  the  ground  of  public  policy, 
upon  which  Lord  Kenyon  is  stated  to  have  proceeded,  be  the 
true  principle  on  which  the  decision  is  to  be  supported.  Here, 
I  say,  the  agreement  is  void  for  want  of  consideration.  There 
was  no  consideration  for  the  ulterior  pay  promised  to  the  mari- 
ners who  remained  with  the  ship.  Before  they  sailed  from 
London  they  had  undertaken  to  do  all  they  could  under  all  the 
emergencies  of  the  voyage.  They  had  sold  all  their  services 
till  the  voyage  should  be  completed.  If  they  had  been  at  lib- 
erty to  quit  the  vessel  at  Cronstadt,  the  case  would  have  been 
quite  different  ;  or  if  the  captain  had  capriciously  discharged 
the  two  men  who  were  wanting,  the  others  might  not  have  been 
compelled  to  take  the  whole  duty  upon  themselves,  and  their 
agreeing  to  do  so  might  have  been  a  sufficient  consideration  for 


I 


SEC.  Ud.]  BARTLETT   V.    WYMAN.  437 

the  promise  of  an  advance  of  wages.  But  the  desertion  of  a 
part  of  the  crew  is  to  be  considered  an  emergency  of  the  voyage 
as  much  as  their  death,  and  those  who  remain  are  bound  by  the 
terms  of  their  original  contract  to  exert  themselves  to  the 
.utmost  to  bring  the  ship  in  safety  to  her  destined  port.  There- 
fore, without  looking  to  the  policy  of  this  agreement,  I  think  it 
is  void  for  want  of  consideration,  and  that  the  plaintiff  can  only 
recover  at  the  rate  of  ^5  a  month. 
Verdict  accordingly. 


BARTLETT  v.  WYMAN. 

In  the  Supreme  Court  of  New  York,  August,  1817. 

\Reported  1)1  i^Jo/inson  260.] 

In  error,  on  certiorari,  to  the  Justice's  Court  of  the  city  of 
New  York. 

This  was  an  action  of  assumpsit  for  seaman's  wages.  The  de- 
fendant in  error,  who  was  plaintiff  in  the  Court  below,  in  the 
month  of  November,  1813,  shipped  in  the  port  of  New  York,  on 
board  the  letter  of  marque  brig  Regent,  commanded  by  the 
plaintiff  in  error,  who  was  defendant  below,  and  signed  ship- 
ping articles  in  common  form,  for  a  voyage  from  New  York  to 
Charleston  or  Savannah,  from  thence  to  France,  and  back  to 
the  United  States,  at  $17  per  month.  Three  witnesses  on  the 
part  of  the  plaintiff  below,  who  were  seamen  on  board  of  the 
brig,  testified  that  some  time  after  the  brig  had  been  in  Savan- 
nah, the  defendant  below  came  forward  to  the  crew,  and  ob- 
served to  them  that  if  they  would  be  faithful  to  the  voyage,  he 
would  give  them  $30  per  month,  or  the  highest  wages  out  of 
the  port,  and  that  this  was  his  own  offer,  and  that  there  had 
been  no  difference  or  dispute  between  him  and  his  crew  ;  that 
several  days  after  the  promise  to  increase  their  wages  some  of 
the  people,  among  whom  was  the  plaintiff  below,  met  the  de- 
fendant near  the  gangway,  and  asked  him  whether  he  meant  to 
draw  and  execute  new  articles,  to  which  he  replied  that  they 
must  content  themselves  that  he  would  do  what  was  right.  That 
some  time  after  this  the  ship's  company  being  ashore,  the  de- 
fendant came  to  them  and  observed  that  he  had  promised  to  raise 
their  wages,  and  the  highest  wages  out  of  port  were  beyond  all 
reason;  but  considering  that  they  were  bound  at  $1 7,  he  thought 
he  would  be  doing  well  by  them  if  he  increased  their  wages  to 


^-S  BARTLETT  V.   WYMAN.  [cHAP.  1. 

$30,  observing  at  the  same  time  that  he  did  not  know  whether 
his  owners  would  approve  it,  but  if  they  did  not,  he  would  pay- 
it  out  of  his  own  pocket.  The  plaintiff's  witnesses  further  testi- 
fied that  about  December  22d  the  defendant  below  called  all 
hands  into  the  cabin  to  sign  new  articles,  and  observed  that  he 
would  perform  his  promise  and  give  them  $30.  That  the  arti- 
cles were  prepared  and  read  to  the  crew  by  one  Hunter,  and 
were  for  the  continuance  of  the  voyage  to  France,  as  in  the 
first  articles,  and  were  dated,  as  was  believed,  on  December  ist, 
at  which  time  their  wages  were  to  commence  at  $30.  That  the 
new  articles  were  signed  by  the  plaintiff  below  and  all  the  rest 
of  the  crew,  but  not  by  the  captain,  and  shortly  after  the  brig 
dropped  down  to  the  light-house  to  avoid  the  effect,  as  the  de- 
fendant said,  of  an  embargo  which  he  understood  was  likely  to 
be  laid  by  Congress.  On  the  new  articles  being  produced, 
there  appeared  an  endorsement  upon  them,  which  had  been 
made  without  the  knowledge  of  the  crew,  as  follows  : 

"Georgia,  Savannah. 
"  The  seamen  having  demanded  an  increase  of  wages,  and 
being  apprehensive  that  they  might  desert  if  this  was  not  done, 
these  articles  were  drawn  up  as  a  mere  matter  of  form  ;  it  is, 
however,  understood  that  the  articles  signed  in  New  York  are 
to  bind,  and  those  signed  here  to  be  of  no  avail,  December  25th, 

'^^3-  "A.  Hunter, 

''Public  Notary:' 

The  plaintiff  below  proceeded  with  the  brig  to  France  and 
returned  to  New  York  in  about  six  months. 

On  the  part  of  the  defendant  it  appeared  in  evidence  that  the 
brig  was  ready  for  sea  about  December  25th  or  26th,  1813  ;  that 
in  the  interval  between  her  arrival  and  the  making  the  promise 
for  the  increase  of  wages,  there  was  a  rumor  at  Savannah  that 
an  embargo  was  about  to  be  laid  by  Congress,  which  occasioned 
a  rise  in  seamen's  wages,  and  many  sailors  in  the  port  of  Savan- 
nah left  their  vessels  and  went  on  board  of  others  ;  that  at  this 
time  the  crew  came  after  the  captain  to  demand  new  articles 
and  an  increase  of  wages,  saying  that  they  would  not  go  the 
voyage  unless  their  wages  were  increased  ;  that  the  defendant 
asked  them  if  they  thought  it  just,  but  ultimately  entered  into 
new  articles  at  an  increased  rate  of  wages.  The  jury  found  a 
verdict  for  the  plaintiff  below,  the  defendant  in  error,  for  his 
wages  according  to  the  new  articles,  deducting  money  advanced, 
and  his  proportion  of  goods  embezzled  on  board  of  the  brig. 

The  return  of  the  certiorari  was  submitted  to  the  Court  with- 
out argument. 


SEC.  nd.]  BAKTLETT   V.    WYMAN.  439 

Spencer,  J.,  delivered  the  opinion  of  the  Court.  Tlie  Court 
are  of  tlie  opinion  that  the  judgment  of  the  Court  below  is  erro- 
neous, and  that  the  defendant  below  was  not  bound  by  the  new 
articles  entered  into  at  Beaufort  for  several  reasons  : 

1.  As  being  in  contravention  of  the  policy  of  the  act  of  Con- 
gress of  July  20th,  1790  ('Vol.  I.  134).  This  statute  requires, 
under  a  penalty,  every  master  of  a  ship  or  vessel  bound  from  a 
port  in  the  United  States  to  any  foreign  port,  before  he  pro- 
ceeds on  the  voyage,  to  make  an  agreement  in  writing  or  print 
with  every  seaman  or  mariner  on  board,  with  the  exception  of 
apprentices  or  servants,  declaring  the  voyage  and  term  of  time 
for  which  the  seaman  or  mariner  shall  be  shipped.  In  the  pres- 
ent case  this  was  done,  and  the  rate  of  wages  fixed  at  $17  per 
month  for  the  whole  voyage.  To  allow  the  seamen  at  an  inter- 
mediate port  to  exact  higher  wages,  under  the  threat  of  desert- 
ing the  ship,  and  to  sanction  this  exaction  by  holding  the  con- 
tract thus  extorted  binding  on  the  master  of  the  ship,  would 
be  not  only  against  the  plain  intention  of  the  statute,  but  would 
be  holding  out  encouragement  to  a  violation  of  duty  as  well  as 
of  contract.  The  statute  protects  the  mariner  and  guards  his 
rights  in  all  essential  points,  and  to  put  the  master  at  the  mercy 
of  the  crew  takes  away  all  reciprocity.  . 

2.  It  is  very  clear  that  the  owners  are  not  bound  by  the  mas- 
ter's contract,  because  he  had  no  power  to  make  it.  They  were 
already  bound  by  the  shipping  articles,  and  the  obligation  was 
mutual.  He  had  no  authority  to  give  more  than  the  sum  for 
which  they  had  originally  stipulated  to  perform  the  voyage. 
If  so,  then  the  exaction  of  higher  wages  may  be  considered  as 
an  undue  advantage  taken  of  the  master's  situation. 

3.  The  promise  to  give  higher  wages  is  void  for  the  want  of 
consideration.  The  seamen  had  no  right  to  abandon  the  ship 
at  Beaufort,  and  a  promise  to  pay  them  an  extra  price  for 
abstaining  from  doing  an  illegal  act  was  a  ttudum pactian. 

4.  The  written  agreement  at  the  port  of  departure  is  the  only 
legitimate  evidence  of  the  contract,  and  a  mariner  can  recover 
nothing  not  specified  in  the  shipping  articles  w^here  those  arti- 
cles have  been  entered  into,  (i  Comyn  on  Contracts,  369  ; 
5  Esp.  Rep.  85  ;  Peake's  Nisi  Prius,  72  ;  2  Bos.  &  Pull.  116.) 

5.  In  the  present  instance  the  master  never  intended  to  be 
bound,  for  he  never  executed  the  new  agreement. 

On   these  grounds  the  Court  cannot  hesitate  in  saying  the 
judgment  below  must  be  reversed. 
Judgment  reversed. 


440  LATTIMORE   V.   HARSEN.  [chap.  I. 

LATTIMORE  v.   HARSEN. 

In  the  Supreme  Court  of  New  York,  August,  1817. 

[Reported  zn  14  Jo/mson  330.] 

This  was  a  motion  to  set  aside  the  report  of  referees.  It 
appeared  from  the  affidavits  which  were  read  that  the  plaintiffs 
entered  into  an  agreement  under  seal  dated  November  14th, 
1815,  with  Jacob  Harsen  and  the  defendant,  Cornelius  Harsen, 
by  which  the  former,  in  consideration  of  the  sum  of  $900,  agreed 
to  open  a  cartway  in  Seventieth  Street,  in  the  city  of  New  York, 
the  dimensions  and  manner  of  which  were  stated  in  the  agree- 
ment, and  bound  themselves  under  the  penalty  of  $250  to  a  per- 
formance on  their  part.  Some  time  after  the  plaintiffs  entered 
upon  the  performance  they  became  dissatisfied  with  their  agree- 
ment, and  determined  to  leave  off  the  work,  when  the  defend- 
ant, by  parol,  released  them  from  their  covenant,  and  promised 
them  that  if  they  would  go  on  and  complete  the  work  and  find 
materials  he  would  pay  them  for  their  labor  by  the  day.  The 
plaintiffs  had  received  more  than  the  sum  stipulated  to  be  paid 
to  them  by  the  original  agreement.  The  action  was  brought 
for  the  work  and  labor  and  materials  found  by  the  plaintiffs 
under  the  subsequent  arrangement,  and  the  referees  reported 
the  sum  of  $400.05  in  favor  of  the  plaintiffs. 

The  case  was  submitted  to  the  Court  without  argument. 

Per  Curiam.  The  only  question  that  can  arise  in  the  case  is 
whether  there  was  evidence  of  a  contract  between  the  plaintiff 
and  the  present  defendant  to  perform  the  services  for  which  this 
suit  is  brought.  From  the  evidence  it  appears  that  a  written 
contract  had  been  entered  into  between  the  plaintiffs  and  the 
defendant,  together  with  his  father,  Jacob  Harsen,  for  the  per- 
formance of  the  same  work,  and  that  after  some  part  of  it  was 
done  the  plaintiffs  became  dissatisfied  with  their  contract,  and 
determined  to  abandon  it.  The  defendant  then  agreed  if  they 
would  go  on  and  complete  the  work  he  would  pay  them  by  the 
day  for  such  service  and  the  materials  found  without  reference 
to  the  written  contract. 

This  is  the  allegation  on  the  part  of  the  plaintiffs,  and  which 
the  evidence  will  very  fairly  support.  If  the  contract  is  made 
out  there  can  be  no  reason  why  it  should  not  be  considered 
binding  on  the  defendant.  By  the  former  contract  the  plain- 
tiffs subjected  themselves  to  a  certain  penalty  for  the  non-fulfil- 
ment, and  if  they  chose  to  incur  this  penalty  they  had  a  right 
to  do  so,  and  notice  of  such  intention  was  given  to  the  defend- 


SEC.  11^.]  AYRES   r.    THE    C,  R.    I.    &    P.    K.    CO,  44I 

ant,  upon  which  he  entered  into  the  new  arrangement.  Here 
was  a  sufficient  consideration  for  this  promise  ;  all  payments 
made  on  the  former  contract  have  been  allowed,  and  perfect 
justice  appears  to  have  been  done  by  the  referees,  and  no  rules 
or  principles  of  law  have  been  infringed.  The  motion  to  set 
aside  the  report,  therefore,  ought  to  be  denied. 
Motion  denied. 


AYRES  7'.  THE    C,  R.   I.  &  P.  R.  CO. 

In  the  Supreme  Court  of  Iowa,  December  6,  1879. 
\^Reporied  in  52  loiva  Reports  47S.J 

Some  time  in  the  year  1875  a  number  of  the  citizens  of  Oska- 
loosa,  desirous  of  securing  an  extension  of  the  Washington  &  Si- 
gourney  branch  of  the  Chicago,  Rock  Island  &  Pacific  Railroad 
from  Sigourney  to  Oskaloosa,  agreed  to  pay  to  the  Chicago, 
Rock  Island  &  Pacific  Railroad  Company  the  sum  of  $20,000 
when  the  track  of  said  railroad  should  be  completed  from  the 
town  of  Sigourney  into  the  city  of  Oskaloosa,  provided  that  if 
the  track  should  net  be  completed  from  the  town  of  Sigourney 
into  the  city  of  Oskaloosa  on  January  ist,  1876,  the  parties  exe- 
cuting said  agreement  should  be  discharged  from  the  obligation 
to  make  payment  of  one  half  of  said  sum. 

On  June  loth,  1875,  the  Chicago,  Rock  Island  &  Pacific  Rail- 
road Company  entered  into  a  contract  with  Queally  &  Bro.,  for 
the  building  of  a  portion  of  said  road.  This  contract  contains 
the  following  provisions  :  "  The  work  shall  be  commenced  im- 
mediately and  shall  be  fully  completed  in  accordance  with  the 
terms  of  this  contract,  on  or  before  December  ist,  1875,  a.d. 
If  the  parties  of  the  first  part  refuse  or  unreasonably  neglect  to 
remedy  any  imperfections  pointed  out  by  the  engineer,  or  in 
any  manner  violate  the  conditions  of  this  contract,  so  that  in 
the  judgment  of  the  engineer  there  will  be  just  grounds  of  ap- 
prehension that  the  work  will  not  be  completed  in  the  manner 
and  within  the  time  specified,  then  it  will  be  the  duty  of  the 
engineer  to  serve  a  written  notice  upon  said  party,  setting  forth 
the  grounds  for  this  apprehension,  and  specifying  the  manner 
together  with  the  reasonable  time  in  which  the  party  of  the  first 
part  ma)'  cause  such  grounds  of  apprehension  to  be  removed, 
and  if  at  the  expiration  of  said  time  said  grounds  of  apprehen- 
sion be  not  removed,  then  full  power  is  hereby  vested  in  said 
engineer  to  declare  the  contract  forfeited,  and  upon  such  decla- 
ration being  given  in  writing  to. the  parties  hereto  this  contract 


442  AYRES   V.   THE   C,  R.    I.   &   P.    R.    CO.  [cHAP.  i. 

shall  determine  immediately,  and  the  party  of  the  second  part 
may  forever  retain  the  reserved  per  centum  in  consideration  of 
the  damages  they  may  have  sustained  by  reason  of  the  forfeiture 
of  the  contract,  or  as  an  alternative  to  the  declaration  of  for- 
feiture the  party  of  the  second  part  shall,  on  written  report  to 
the  engineer  that  apprehensions  are  entertained  that  this  con- 
tract will  not  be  completed  in  the  time  and  manner  herein  stipu- 
lated, have  the  right  to  take  such  measures  as  may  be  deemed 
by  the  engineer  necessary  to  insure  the  completion  of  the  work 
in  the  time  and  manner  herein  stipulated,  and  to  deduct  from 
the  monthly  and  final  estimates  of  the  work  done  under  the 
contract  such  sum  or  sums  as  may  be  required  to  defray  the 
expenses  of  such  measures.  Among  the  measures  which,  under 
such  circumstances,  may  be  resorted  to  are  the  execution  by 
their  own  agents  of  such  portion  of  the  work  as  said  engineer 
may  select,  or  the  requirement  that  the  parties  of  the  first  part 
shall  provide  for  and  employ  in  the  most  efficient  manner  such 
additional  men,  carts,  teams,  etc.,  as  the  party  of  the  second 
part  may  furnish,  in  which  case  said  parties  of  the  first  part 
agree  to  employ  said  men,  carts,  teams,  etc.,  in  the  manner 
directed  by  the  engineer,  who  shall  have  the  right  to  retain 
from  the  estimates  an  amount  sufficient  to  pay  said  men,  carts, 
teams,  etc."  Pursuant  to  this  contract  Queally  &  Bro.  com- 
menced work  in  June,  1875.  On  August  13th,  1875,  they  exe- 
cuted a  power  of  attorney  to  C.  A.  Weed,  authorizing  him  to  do 
all  things  necessary  to  the  carrying  out  of  the  above  contract, 
and  placed  him  in  the  actual  management  of  the  work.  On 
August  26th,  1875,  J.  J.  A.  Queally,  the  senior  and  active  busi- 
ness member  of  the  firm  of  Queally  &  Bro.,  died. 

The  contract  proved  not  to  be  a  profitable  one,  and  up  to  the 
time  of  the  death  of  the  senior  member  of  the  firm  it  had  been 
carried  on  at  a  great  loss,  and  a  large  amount  was  due  to  mer- 
chants and  others  for  provisions  and  supplies  which  had  been 
advanced  to  laborers,  the  amount  of  which  was  deducted  from 
their  pay  on  the  rolls.  After  the  death  of  J.  J.  A.  Queally,  it  is 
claimed  by  plaintiff  that  Weed  informed  Hugh  Riddle,  the 
Vice-President  and  Chief  Engineer  of  the  C,  R.  I.  &  P.  R.  Co., 
of  the  condition  of  affairs,  and  that  Riddle,  on  September  15th, 
1875,  requested  the  work  to  be  carried  on  in  the  name  of 
Queally  &  Bro.,  and  agreed  to  pay  whatever  debts  had  been  or 
might  be  contracted  in  the  prosecution  of  the  work.  From 
July  ist  to  September  13th,  1875,  the  plaintiff  sold  and  delivered 
goods,  wares,  and  merchandise  to  divers  persons  in  the  employ 
of  Queally  &  Bro.,  and  to  the  contractors  working  under 
Queally  &  Bro.,  on  account  of  which  the  plaintiff  claims  of  the 


SEC.  nd.]  AYRES   7'.    THE   C,  R.    I.   &    P.    R.    CO.  443 

defendant  the  sum  of  $3000  under  the  agreement  above  claimed. 
The  plaintiff  also  claims  to  be  assignee  of  various  persons  who 
furnished  hay,  corn,  meat,  etc.,  to  Oueally  &  Bro.,  and  to  the 
contractors  working  under  Oueally  &  Bro.,  and  their  employes. 
The  evidence  shows  that  all  the  claims  of  the  alleged  assignors 
of  plaintiff,  with  the  exception  of  a  very  inconsiderable  sum, 
arose  prior  to  September  12th,  1875,  and  as  to  this  small  sum 
credit  was  given  to  the  contractors  and  sub-contractors  to  whom 
and  on  whose  orders  the  sales  were  made.  On  account  of  all 
the  demands  the  plaintiff  claims  of  the  defendant  $15,000. 
There  was  a  jury  trial,  resulting  in  a  verdict  for  plaintiff  for 
$9797-72.     The  jury  also  returned  the  following  special  findings  : 

"  Do  you  find  that  the  defendant  made  a  parol  promise  to  pay 
the  debts  of  Queally  &  Bro.,  and  the  sub-contractors,  that  were 
due  to  the  plaintiff  and  his  assignors  in  this  suit  ?  Answer  : 
Yes. 

"  When  were  said  promises  made — give  the  months  and 
dates  ?     Answer  :  On  or  about  September  12th  or  13th,  1875. 

"  To  whom  were  said  promises  made  ;  give  the  names  of  all 
persons  to  whom  you  find  the  said  promises  to  have  been  made. 
Answer  :  To  John  F.  Lacey,  C.  A.  Weed,  and  F.  J.  Oueally. 

"  Do  you  find  that  Mr.  Riddle  about  the  middle  of  Septem- 
ber, 1878,  made  a  parol  promise  to  Mr.  Weed,  as  the  agent  of 
Queally  &  Bro.,  to  see  that  the  debts  of  said  Queally  &  Bro.  to 
the  plaintiff  and  his  assignors  in  this  suit  should  be  paid  ? 
Answer  :  Yes. 

"  What  was  the  consideration  for  such  promises  ?  Answer  : 
It  was  to  prevent  the  stoppage  of  work  on  the  road,  and  to  en- 
able the  railroad  company  to  get  its  road  completed  at  an  early 
day,  and  in  order  that  it  might  draw  the  money  subscribed  by 
the  citizens  of  Oskaloosa." 

The  defendant's  motion  for  a  new  trial  was  overruled,  and 
judgment  was  rendered  for  plaintiff.     The  defendant  appeals. 

M.  E,  Cutis  for  appellant. 

JoJui  F.  Lacey  for  appellee. 

Day,  J.  The  plaintiff  introduced  C.  A.  Weed,  general  man- 
ager for  Queally  &  Bro.,  who,  among  other  things,  testified  as 
follows  :  "  I  went  to  Chicago  three  times  after  the  death  of 
J.  J.  A.  Queally,  to  confer  with  Mr.  Riddle  about  the  business, 
and  I  had  a  conference  with  him  at  Oskaloosa  in  regard  to  the 
financial  matters  of  the  work.  The  first  interview  was  about 
September  15th,  1875,  after  the  death  of  Mr.  Queally,  when  I 
went  to  Chicago  at  the  request  of  Mr.  Riddle,  with  the  pay- 
rolls from  the  beginning  of  the  work  to  September  ist,  and 
other  papers  and   figures  relating  thereto,  which   he  examined. 


,],].1  AYRES   V.   THE   C,  R.    I.   &   P.    R.    CO.  [chap.  I. 

I  told  him  tliat  Oueally  &  Bro.  were  losing  money,  and  that  it 
would  be  impossible  for  them  to  complete  the  work  at  the  con- 
tract price,  and  unless  they  received  aid  in  some  way  from  the 
company  they  would  have  to  throw  up  the  work.  He  said  that 
at  that  time  he  could  not  advance  the  price,  nor  would  he  allow 
Queally  &  Bro.  to  throw  up  the  work  ;  that  he  wanted  the  work 
to  proceed  to  completion  under  the  name  of  Queally  &  Bro., 
and  for  me  to  remain  as  manager  of  the  work,  and  at  its  com- 
pletion, if  he  saw  the  work  had  been  handled  economically,  that 
then  he  would  advance  money  sufficient  to  pay  the  actual  ex- 
pense of  the  work.  He  also  said  that  as  Queally  &  Bro.  had 
proven  themselves  unable  to  carry  on  the  work  financially,  and 
it  would  be  necessary  for  the  company  to  advance  money  to  pay 
for  the  labor,  supplies,  etc.,  that  he  would  send  a  man  to  Oska- 
loosa  to  handle  the  money  advanced  by  the  company,  taking 
my  receipt  for  the  money  paid  out  as  agent  of  Queally  &  Bro., 
that  man  to  also  vouch  for  all  bills  of  merchants  of  whom  we 
were  getting  supplies,  so  that  they  would  feel  safe  and  continue 
to  give  credit  to  Queally  &  Bro.;  it  was  at  my  own  request  that 
this  man  was  sent  for  the  above  purpose,  as  the  merchants, 
mechanics,  and  others  whom  we  had  dealt  with  at  Oskaloosa 
for  necessary  supplies  had  after  the  death  of  Mr.  Queally  found 
that  Queally  &  Bro.  were  unable  to  pay  their  bills,  and  would, 
therefore,  give  them  no  more  credit,  without  which  the  work 
would  have  to  stop,  all  of  which  I  told  Mr.  Riddle,  and  that  in 
order  to  carry  on  the  work  under  the  name  of  Queally  &  Bro. 
it  would  be  necessary  for  him  to  send  a  man  to  Oskaloosa  who 
should  have  power  to  approve  all  debts  contracted  for  the  neces- 
sary expenses  of  carrying  on  the  work.  F.  J.  Oueally  was  pres- 
ent with  me  at  this  interview,  from  whom  Mr.  Riddle  required 
a  power  of  attorney  empowering  me  to  do  the  business  of 
Queally  &  Bro.  on  the  contract  between  them  and  the  railroad 
company,  said  power  of  attorney  to  be  signed  by  F.  J.  Queally 
as  surviving  partner  of  Queally  &  Bro.,  which  power  of  attorney 
was  made  out,  at  the  direction  of  Mr.  Riddle,  by  some  one  in 
his  employ.  At  this  time  there  was  quite  a  large  amount  due 
to  merchants  and  others  at  Oskaloosa  for  provisions  and  sup- 
plies which  had  been  advanced  to  laborers  and  was  deducted 
from  their  pay  on  the  rolls,  which  Mr.  Riddle  said,  if  after  a 
thorough  examination  of  the  books  and  rolls  of  Queally  &  Bro. 
they  were  found  to  be  honest  and  legitimate,  would  be  paid, 
but  until  the  books  and  accounts  of  Queally  &  Bro.  had  been 
looked  over  by  a  man  whom  he  would  send,  he  could  do  nothing 
about  it.  He  told  me  to  tell  the  people  of  Oskaloosa  whom  we 
had  dealings  with  he  would  see  that  all  bills  contracted  for  by 


SEC.  lu/.]  AYRES   7'.    THE   C,  R.    I.   &    T.    R.    CO.  445 

Oueall}^  &  Bro.,  for  supplies  necessary  for  carrying  on  the  work, 
would  be  paid." 

Respecting  this  same  interview  at  Chicago  F.  J.  Queally  testi- 
fied as  follows  :  "  About  September  loth,  1S75,  I  met  Mr.  Riddle 
for  the  first  time.  I  then  told  him  the  contract  was  a  losing 
business  at  the  price  he  was  then  paying  per  yard,  and  wanted 
him  to  take  the  contract  off  of  our  hands  or  raise  the  prices. 
He  then  said  that  we  should  go  on  with  the  contract  at  the 
present  price,  and  under  the  same  name,  Queally  &  Bro.,  and 
any  deficiency  in  the  monthly  estimate  of  the  work  and  the 
actual  contracts  made  b}^  us  in  carrying  on  said  work  would  be 
paid  by  the  Chicago,  Rock  Island  &  Pacific  Railroad  Company, 
the  defendant.  He  reserved  the  right  to  place  a  man,  his  own 
man,  in  charge  of  the  money,  to  see  that  said  money  was  used 
in  the  right  channel  in  paying  for  said  work  and  contracts  made 
by  us  in  carrying  on  the  work.  .  .  .  The  consideration  for  this 
agreement  of  Mr.  Riddle  was  that  he  did  not  want  to  go  to  the 
trouble  of  reletting  the  contract  to  another  party  and  having 
the  work  stop.  Mr.  Riddle  put  a  man  in  charge  of  the  work 
and  to  pay  out  the  money." 

The  witness  Weed  testified  to  another  interview  with  Mr. 
Riddle  in  Chicago  in  November,  as  follows  :  "  At  another  time 
John  F.  Lacey  and  myself  went  from  Oskaloosa  to  Chicago  at 
the  request  of  Mr.  Riddle  ;  Mr.  Lacey  went  as  attorney  for  the 
creditors  of  Queally  &  Bro.  The  interview  between  Mr.  Lacey 
and  Riddle  was  in  my  hearing,  and  in  which  I  took  part.  At 
that  time  Mr.  Riddle  told  Mr.  Lacey  and  myself  that  all  of 
Queally  &  Bro.'s  indebtedness  for  supplies  advanced  to  men,  as 
well  as  board  which  was  charged  to  men,  and  which  had  been 
stopped  from  their  wages  and  appeared  on  the  rolls  under  the 
head  of  stoppages,  should  be  paid.  He  said  at  that  time  that 
he  would  furnish  money  to  pay  off  the  rolls  in  full,  and  all  other 
necessary  expenses  incurred  in  building  the  road,  and  that  no 
one  who  advanced  anything  in  the  way  of  necessary  supplies 
should  lose  anything  for  so  doing  ;  that  all  money  so  advanced 
he  would  charge  to  Queally  &  Bro.,  and  hold  it  as  a  claim 
against  them  till  final  settlement.  He  said  he  would  pay  all 
stoppages  on  the  rolls  that  had  been  taken  out  of  the  men's 
wages.  He  told  me  to  inform  the  merchants  and  others  at 
Oskaloosa  that  they  would  not  lose  anything  on  any  necessary 
provisions  or  other  supplies  advanced  to  Queally  &  Bro." 

Respecting  this  interview  John  F.  Lacey  testified  as  follows  : 
"  Mr.  Riddle  and  I  looked  over  the  rolls  to  see  whether  the 
stoppages  would  cover  the  amount  of  claims  I  represented. 
During  the  conversation  Mr.  Riddle  said.  Weed  being  present. 


446  AYRES   V.   THE   C,  R.    I.   &   P.    R.   CO.  [CHAP.  I. 

that  he  was  willing  to  pay  whatever  the  road  cost,  and  what- 
ever went  into  the  road  he  was  willing  to  pay.  He  told  me  he 
had  some  securities,  some  shovels  and  so  on,  and  he  did  not 
know  what  he  would  get  out  of  them  ;  that  there  was  some  con- 
test about  them,  but  that  he  would  pay  all  these  claims  that 
were  just,  and  that  went  to  the  men,  or  that  went  into  the  road. 
When  we  came  back  from  dinner  he  claimed  that  he  had  found 
a  discrepancy  in  Ferguson's  rolls.  He  wanted  to  know  why 
he,  Ferguson,  had  so  many  men  in  the  last  days  of  September, 
and  on  the  next  day  twenty-five  or  thirty  more  men.  He  was 
mad  and  spoke  rather  emphatically.  Weed  said  he  could  not 
explain  it,  but  finally  explained  that  perhaps  these  were  a  lot 
of  men  that  had  come  down  from  Montezuma,  but  did  not  ex- 
plain it  for  some  time.  Mr.  Riddle  then  said  that,  having  made 
this  discovery,  he  would  have  to  suspend  his  action.  He  said 
previously  he  would  pay  at  once,  but  he  said  afterward  he 
would  pay  it  if  there  was  no  fraud  in  the  matter,  but  he  would 
have  to  investigate  it.  He  was  angry,  and  Weed's  explanation 
was  not  prompt  enough.  The  interview  ended  pretty  soon,  and 
he  told  me  he  would  write  me.  He  made  no  further  promise. 
Mr.  Riddle  made  the  promise  to  me.  He  said  to  Mr.  Weed  : 
'  I  always  told  you  I  would  not  release  you  from  your  contract, 
and  shall  charge  this  up  to  Queally  &  Bro.'  Mr.  Riddle  said 
he  would  charge  all  these  amounts  up  to  Queally  &  Bro.  under 
their  contract." 

The  witness  Weed  testified  to  another  interview  between 
himself  and  Mr.  Riddle,  as  follows  :  "  At  the  interview  between 
him  and  myself  in  Oskaloosa  I  spoke  to  him  about  the  indebted- 
ness of  Queally  &  Bro.  for  supplies  furnished  for  the  work,  told 
him  the  creditors  were  very  anxious  about  their  pay,  and  he 
said  he  was  not  ready  to  make  any  definite  answer."  The 
above  contains  substantially  all  that  was  said  by  Riddle  respect- 
ing the  payment  of  these  claims  as  shown  by  the  testimony  in- 
troduced on  behalf  of  the  plaintiff.  At  the  time  this  testimony 
was  offered  the  defendant  objected  to  all  of  it  which  tended  to 
prove  an  agreement  to  pay  the  debts  of  Queally  &  Bro.,  because 
it  is  not  competent  to  prove  a  parol  promise  by  defendant  to 
pay  the  debts  of  another.  The  objection  was  overruled,  and 
the  defendant  excepted.  The  Court,  among  others,  gave  the 
jury  the  following  instructions  : 

"  5.  If  you  find  from  the  evidence  that  the  firm  of  Queally  & 
Bro.  had  the  contract  for  grading  the  defendant's  road  from  the 
Keokuk  County  line  to  the  city  of  Oskaloosa,  and  that  at  the 
time  J.  J.  A.  Queally,  of  said  firm,  deceased,  the  firm  was  in- 
solvent and  incapable  of  going  on  with  the  work  under  the  con- 


SEC.  II</.]  AVRES    V.    THE    C,  R.    I.    &    P.    R.    CO.  447 

tract,  and  thereupon  the  surviving  partner,  F.  J.  Oueally,  had 
an  interview  with  Hugh  Riddle,  in  which  he  informed  said 
Riddle  of  the  insolvent  condition  of  the  firm  and  its  inability  to 
continue  the  work  further  or  to  pay  its  outstanding  debts  con- 
tracted for  necessary  supplies  and  material  furnished  in  the 
construction  of  the  road  ;  tliat  thereupon  Riddle  orally  prom- 
ised to  pay  such  outstanding  debts,  and  directed  Oueally  or  his 
agent,  C.  A.  Weed,  to  inform  the  parties  holding  such  claims 
that  they  would  be  paid,  as  well  as  all  other  necessary  su|)plies 
and  material  thereafter  furnished  in  the  construction  of  the 
road  ;  that  such  parties  were  informed  of  such  promise  in  ac- 
cordance with  the  direction  of  said  Riddle  ;  that  tlie  railroad 
company  thereafter  sent  its  agent  to  Oskaloosa  to  take  charge 
of  the  pay-rolls  and  to  pay  off  the  workmen  and  others  furnish- 
ing supplies  for  the  road,  with  money  furnished  him  by  the 
company  for  that  purpose  ;  and  you  further  believe  from  the 
evidence  that  the  object  of  said  Riddle  in  making  such  promise 
was  to  prevent  the  work  on  the  road  from  being  suspended,  and 
to  enable  the  railroad  company  to  have  its  road  completed  with- 
out delay  ;  that  such  promise  did  have  such  effect  ;  then  the 
defendant  is  liable  upon  such  promise,  although  not  in  writing, 
provided  it  is  sufficiently  shown  that  said  Riddle  was  the  gen- 
eral agent  of  the  company  and  authorized  to  make  contracts  of 
such  character. 

"  12.  If  you  find  from  the  evidence  that  the  defendant  made 
a  parol  promise  to  Queally  &  Bro.,  or  to  the  surviving  partner 
of  said  firm,  to  see  paid  the  debts  of  said  Queally  &  Bro.  that 
had  accrued  and  been  incurred  in  the  prosecution  of  the  work 
on  the  railroad  of  defendant,  under  the  original  written  con- 
tract executed  by  said  Queally  &  Bro.,  to  perform  said  work, 
and  further  find  that  the  only  consideration  for  such  parol 
promise  was  the  doing  and  agreement  to  do  by  said  F.  J. 
Queally  as  such  surviving  partner  only  such  acts  as  he  was  in 
any  event  under  legal  obligation  to  do,  and  that  thereby  the 
defendant  acquired  and  derived  no  new  or  additional  benefit, 
right  or  advantage  that  it  did  not  before  fully  have  and  possess, 
then  such  parol  promise,  not  being  in  writing,  is  void  ;  and  this 
is  so,  even  though  defendant  made  said  parol  promise  for  the 
purpose  of  inducing  said  F.  J.  Queally  to  continue  said  work 
to  its  completion  under  said  written  contract."  This  last  in- 
struction was  gi\  en  at  the  request  of  the  defendant. 

The  case  has  been  presented  by  counsel  in  two  aspects. 
First.  Is  there  any  consideration  for  the  parol  promise  of  the 
defendant  to  pay  the  debts  incurred  by  Queally  &  Bro.  in  the 
prosecution  of  the  work  ?     Second.   Is  the  parol  promise  of  the 


448  AYRES   V.    THE   C,  R.    I.   &   P.    R.   CO.  [CHAP.  I. 

defendant  to  pay  the  debts  of  Queally  &  Bro.  void  under  the 
statute  of  frauds  ? 

A  consideration  consists  of  some  benefit  or  advantage  accru- 
ing to  the  promisor,  or  of  some  loss  or  disadvantage  incurred 
by  the  promisee.  The  jury  in  this  case  found  specially  that  the 
consideration  for  the  defendant's  promise  "  was  to  prevent  the 
stoppage  of  work  on  the  road,  and  to  enable  the  railroad  com- 
pany to  get  its  roc  d  completed  at  an  early  day,  and  in  order 
that  it  might  draw  the  money  subscribed  by  the  citizens  of 
Oskaloosa. " 

I.  Does  this  finding  of  the  jury  show  a  consideration  sufficient 
to  support  the  defendant's  promise  ?  The  jury  have  found  that 
the  consideration  consisted  in  an  advantage  accruing  to  the 
promisor — to  wit,  that  the  work  should  not  be  stopped,  but  that 
it  should  be  completed  at  an  early  day  so  that  defendant  might 
draw  the  money  subscribed  by  the  citizens  of  Oskaloosa.  But 
the  defendant,  under  its  original  contract,  had  the  right  to  in- 
sist upon  all  these  things.  The  amount  subscribed  by  the  citi- 
zens of  Oskaloosa  was  all  payable  if  the  track  should  be  com- 
pleted into  the  city  of  Oskaloosa  on  January  ist,  1876.  Queally  & 
Bro.,  under  their  contract,  were  bound  to  complete  the  work  by 
December  ist,  1875.  They  were  under  obligation  to  perform 
their  contract.  They  had  no  right  to  quit  work  and  abandon 
their  contract.  If  they  performed  their  contract  as  they  agreed, 
the  amount  subscribed  by  the  citizens  of  Oskaloosa  would  be 
secured.  The  consideration,  as  found  by  the  jury,  secured  to 
the  defendant  no  advantage  not  before  possessed.  The  case  of 
Reynolds  v.  Nugent,  25  Ind.  328,  is,  in  principle,  the  same  as 
the  one  at  bar.  Nugent  signed  a  written  contract  by  which  he 
agreed  to  enter  the  military  service  of  the  United  States  to  the 
credit  of  Tobin  township,  in  consideration  of  the  payment  of  a 
bounty  of  $100.  Reynolds,  the  agent  of  the  township,  accom- 
panied Nugent  to  the  mustering  office  to  procure  his  muster  in, 
and  to  pay  him  the  bounty  promised.  While  there  Nugent  was 
offered  by  others  a  bounty  of  $350,  and  refused  to  perform  his 
contract  unless  the  township  would  pay  him  that  amount  ;  and 
Reynolds,  thereupon,  to  induce  Nugent  to  perform  his  contract, 
promised  that  he  would  be  responsible  that  Nugent  should  re- 
ceive that  amount  f:om  Tobin  township.  The  Court  say  :  "  It 
is  urged  on  behalf  of  the  appellant  that  the  promise  of  Reynolds 
to  pay  $350  was  void  for  want  of  consideration.  This  position, 
in  our  judgment,  is  correct.  The  contract  was  already  com- 
plete and  perfect.  Nugent  had,  as  he  states,  agreed  to  enter 
the  military  service  of  the  United  States  and  have  the  credit 
given  to  Tobin  township  upon  the  promise  that  he  should  be 


SEC.  11^.]  AYRES   V.    THE   C,  R.    I.   &   P.    R.    CO.  449 

paid  the  sum  of  $100.  That  promise  was  binding  upon  botli 
parties.  The  one  promise  was  a  sufficient  consideration  for  the 
other.  He  now  claims  that  the  appellant,  to  induce  him  to  ful- 
fil his  legal  obligation,  promised  to  pay  him  an  additional  sum. 
There  were  no  new  duties  assumed  by  Nugent,  but  he  claims 
that  in  consequence  of  the  promise  by  the  appellant  he  went 
forward  and  performed  the  contract  he  was  already  under  legal 
obligation  to  comply  with.  If  the  appellant  made  the  promise, 
it  was  without  any  adequate  consideration,  and  cannot  be  en- 
forced in  law.  (i  Parsons  on  Contracts,  5th  ed.,  437.)  That  a 
promise  to  do  what  a  person  is  bound  to  do  by  law  is  not  a 
good  consideration  for  another  undertaking,  and  that  a  person 
is  not  bound  to  fulfil  his  promise  to  pay  another  for  doing  wiiat 
he  is  bound  by  law  to  do,  is  well  settled."  In  Parmelee  v. 
Thompson,  45  N.  Y.  58,  the  Court  say  :  "  If  the  only  considera- 
tion for  the  promise  of  the  creditor  is  the  performance  by  the 
debtor,  or  a  promise  to  perform,  some  act  which  he  is  legally 
bound  to  perform,  the  promise  is  without  consideration."  See, 
to  the  same  effect,  Pulman  v.  Pulman,  4  Ind.  612  ;  Crowhurst  ?'. 
Tannack,  16  Eng.  L.  and  Eq.  499  ;  Gibson  7).  Renne,  19  Wend. 
389  ;  Miller  z'.  Holbrook,  i  Wend.  318  ;  Stilk  7'.  Myrick,  2  Camp. 

317- 

In  Ferterman  v.  Parker,  10  Ind.  474,  the  plaintiff  contracted 
to  put  in  operation  a  saw-mill  for  the  defendant  for  $100,  part 
of  which  was  paid  at  the  time.  The  plaintiff  afterward  refused 
to  go  on  with  the  work,  because  the  price  was  too  low,  and 
defendant  then  sent  plaintiff  word  to  do  the  work  and  he  would 
pay  what  was  right.  The  plaintiff  did  the  work  and  sued  for 
his  compensation.  The  Court  say  :  "  On  the  part  of  the  plain- 
tiff it  is  insisted  that,  although  the  first  contract  was  not  re- 
scinded, yet  the  parties  were  at  liberty  to  vary  it.  There  is  no 
doubt  of  this  proposition  ;  but  it  will  be  recollected  that  the 
variation  of  a  contract  is  as  much  a  matter  of  contract  as  the 
original  agreement,  it  equally  requires  the  concurrence  of  inten- 
tion in  the  parties,  it  cannot  be  varied  at  the  mere  will  and 
pleasure  of  either.  But  in  what  was  the  contract  varied  ;  not 
in  the  work  to  be  done,  that  was  not  altered  in  the  slightest 
manner  ;  the  plaintiff  came  under  no  new  obligation,  he  was  to 
do  the  same  work  he  had  previously  bound  himself  to  do.  It 
was  varied,  says  the  plaintiff,  in  this,  that  the  defendant  prom- 
ised to  give  an  additional  $50  if  he  would  build  the  mill.  Let 
it  be  admitted  that  the  defendant,  under  the  circumstances, 
had,  in  so  many  words,  promised  the  plaintiff  that  he  would 
give  him  $50  more,  or  $150  for  building  the  mill,  would  that 
have  been  in  law  a  valid  promise  ?     I  concur  in  the  opinion  that 


450  AYRES   V.   THE   C,    R.    I.   &   P.    R.    CO.  [CHAP.  I. 

it  would  not.  A  consideration  is  an  essential  ingredient  to  the 
legal  existence  of  every  simple  contract.  This  consideration 
consists,  as  defined  by  Mr.  Smith,  in  his  Treatise  on  Contracts, 
p.  87,  to  be  '  any  benefit  to  the  person  making  the  promise,  or 
any  loss,  trouble,  or  inconvenience  to,  or  charge  upon,  the  per- 
son to  whom  it  is  made.'  The  case  states  that  the  $100  origi- 
nally promised  had  been  paid  by  the  defendant,  and  the  con- 
troversy is  for  the  $50  under  the  alleged  promise.  What  loss, 
trouble,  or  inconvenience,  or  charge  resulted  to  the  plaintiff  by 
his  executing  the  work  ?  He  was  bound  to  build  the  mill  by 
his  original  contract,  and  he  was  to  do  and  did  nothing  more. 
What  benefit  was  to  result  to  the  defendant  by  the  promise  to 
pay  the  additional  $50  ?  None  whatever.  He  was  to  receive 
from  the  plaintiff  precisely  the  same  quantum  of  work  without 
it  as  with  it.  The  promise,  therefore,  if  made,  was  purely  a 
nudum  pactum,  not  binding  in  law,  however  it  maybe  so  in  honor 
and  conscience."  See  also  Proctor  v.  Kent,  12  B.  Mon.  252  ; 
Overden  v.  Wiley,  30  Ala.  709  ;  Jones  v.  Miller,  12  Mo.  408  ; 
Laidlow  v.  Hatch,  75  Ills.  11  ;  Owen  v.  Stevens,  78  Ills.  462. 

It  is  fully  apparent  from  these  authorities  that  no  considera- 
tion of  advantage  to  the  defendant  existed  in  this  case,  and  that 
the  consideration  upon  which  the  jury  based  the  defendant's 
promise  will  not  support  that  promise. 

II.  We  have  seen  that  the  consideration  which  the  jury  found 
existed  will  not  support  the  defendant's  promise.  If  we  look 
for  a  consideration  growing  out  of  any  loss  or  disadvantage 
incurred  by  Queally  &  Bro.,  we  will  find  it  equally  wanting. 
The  evidence  does  not  show  any  express  agreement  of  Queally  & 
Bro.,  or  of  the  surviving  member  of  the  firm,  to  do  anything. 
The  most  that  can  be  inferred  from  the  evidence  is  that  the  sur- 
viving member  of  the  firm  impliedly  agreed  to  go  on  with  the 
work,  and  perform  it  in  the  manner  and  under  the  terms  pro- 
vided in  the  original  agreement.  In  assuming  to  do  this  he 
undertook  no  more  than  he  was  under  obligation  to  perform 
before. 

III.  We  are  equally  unable  to  find  any  consideration  for  the 
promise  growing  out  of  any  prejudice  or  disadvantage  to  the 
creditors  of  Queally  &  Bro.,  the  plaintiff  in  this  suit  and  his 
assignors.  Nearly  all  of  their  claims  arose  before  the  defend- 
ant's promise  was  made.  As  to  that  portion  of  these  demands 
there  can  be  no  pretense  that  they  changed  their  situation  or 
sustained  any  prejudice  because  of  defendant's  promise.  As  to 
the  very  inconsiderable  portion  of  the  claims  which  arose  after 
defendant's  promise,  it  does  not  appear  that  credit  was  extended 
in  any  manner  different  from  what  it  was  given  before.      In 


SEC.  11^/.]  ROLLINS   V.    MARSH.  45  F 

fact,  in  almost  every  instance  it  appears  that  credit  was  given 
solely  to  the  person  to  whom,  or  on  whose  order,  the  sale  was 
made.  It  follows  from  what  has  been  said  that  the  Court  erred 
in  giving  the  fifth  instruction,  that  the  general  verdict  for  plain- 
tiff is  in  conflict  with  the  twelfth  instruction  given,  and  that  the 
consideration  on  which  the  jury  found  the  defendant's  promise 
was  made  does  not  support  the  promise. 

The  foregoing  considerations  are  decisive  of  the  case.  It  is 
unnecessary  to  consider  the  second  question  so  ably  discussed 
by  counsel — namely,  is  the  promise  of  the  defendant,  though 
resting  upon  sufficient  consideration,  void  under  the  Statute  of 
Frauds,  because  not  in  writing  ?  The  judgment  of  the  Court 
below  is  reversed. 


EMILY   R.  ROLLINS  v.  ALEXANDER   MARSH. 

In    the   Supreme    Judicial    Court    of    Massachusetts,  Jan- 
uary 12,  i88o. 

[Reported  in  128  Massachusetts  Reports  116. J 

Contract  in  two  counts.  The  first  count  was  on  an  account 
annexed  for  board,  lodging,  and  care  furnished  Lucy  A.  Rol- 
lins, an  insane  person,  of  whom  the  defendant  was  guardian. 
The  second  count  was  on  a  written  contract,  by  the  terms  of 
which  the  plaintiff  was  to  furnish  Rollins  with  board,  lodging, 
and  care  during  her  natural  life,  in  consideration  of  the  use  of 
certain  real  estate  and  personal  property  belonging  to  Rollins. 
The  writ,  dated  November  23d,  1877,  was  against  the  defendant, 
"  as  he  was  the  guardian  of  Lucy  A.  Rollins." 

Trial  in  the  Superior  Court,  before  Dewey,  J.,  who  allowed 
a  bill  of  exceptions  in  substance  as  follows  : 

The  defendant  was  appointed  guardian  of  Lucy  A.  Rol- 
lins, an  insane  person,  in  March,  1874.  The  defendant,  on 
March  20th,  1874,  made  with  the  plaintiff  the  written  contract 
declared  on  ;  and  the  plaintiff  then  entered  into  possession  of 
the  real  and  personal  estate  therein  named,  and  continued  in 
possession  thereof  until  April  ist,  1877.  The  plaintiff  assumed 
the  care  and  suppo/t  of  Rollins  on  March  20th,  1874,  under  the 
contract,  and  continued  such  care  and  support  until  Decem- 
ber nth,  1876,  when  Rollins,  with  the  consent  of  the  plaintiff, 
left  for  a  visit  to  her  daughter,  and  died  while  thus  absent,  on 
October  27th,  1877.     The  plaintiff  contended  that,  a  few  weeks 


452  ROLLINS   2'.    MARSH.  [cHAP.  I. 

after  March  20th,  1874,  she  found  the  support  and  care  of  Rol- 
lins more  onerous  and  expensive  than  she  had  anticipated,  and 
more  than  it  had  previously  been  ;  that  she  requested  the  de- 
fendant to  remove  her,  and  declined  to  continue  lier  future  care 
unless  the  defendant  would  make  a  further  compensation  there- 
for ;  and  that  the  defendant  thereupon  agreed  to  make  her  such 
further  compensation  as  should  be  right.  The  making  of  any 
such  contract  was  denied  by  the  defendant. 

The  defendant  contended  that  the  plaintiff  could  not  main- 
tain an  action  in  its  present  form  against  him  for  the  care  and 
support  of  his  ward  ;  that  if  any  contract  was  made  by  him  as 
guardian,  this  action  could  not  be  maintained  ;  that  the  remedy 
was  either  by  an  action  against  the  ward  or  her  administrator, 
or  on  the  bond  given  by  the  defendant  as  guardian  ;  and  that 
there  was  no  consideration  for  a  new  agreement  while  the  writ- 
ten one  was  in  force,  for  the  care  and  support  of  the  ward  dur- 
ing her  life. 

The  jury  returned  a  verdict  for  the  plaintiff  ;  and  the  judge 
reported  the  case  for  the  determination  of  this  Court.  If  the 
action  could  be  maintained,  judgment  was  to  be  entered  on  the 
verdict  ;  otherwise,  the  verdict  was  to  be  set  aside. 

JV.  A.  Gile  for  the  defendant. 

B.  W.  Potter  for  the  plaintiff. 

SouLE,  J.  Guardians  of  minors,  spendthrifts,  or  insane  per- 
sons do  not  become  owners  of  the  property  which  is  placed 
under  their  charge.  The  title  thereto  remains  in  the  wards. 
The  guardians  have  only  a  naked  power,  not  coupled  with  an 
interest.  The  debts  of  the  ward  remain  his  debts,  and  can  be 
recovered  by  suit  against  him,  not  by  suit  against  the  guardian. 
Brown  v.  Chase,  4  Mass.  436  ;  Simmons  v.  Almy,  100  Mass.  239. 
Such  suit  may  be  defended  by  the  guardian  in  behalf  of  the 
ward.  The  guardian  cannot  bind  the  person  or  estate  of  his 
ward  by  contract  made  by  himself.  Such  contract  binds  him 
personally,  and  recovery  for  breach  of  it  must  be  had  in  an 
action  against  him.  Hicks  v.  Chapman,  10  Allen,  463  ;  Bick- 
nell  V.  Bicknell,  iii  Mass.  265  ;  Wallis  v.  Bard  well,  126  Mass. 
366.  He  cannot  escape  liability  on  such  contracts  by  reciting 
that  he  makes  them  in  his  official  capacity  ;  and  it  is  immate- 
rial, in  a  suit  brought  against  him  thereon,  whether  he  is  de- 
scribed by  his  official  title  or  not.  The  judgment  in  either  case 
must  be  against  him  personally,  and  the  description  has  no 
legal  effect.  It  may  be  disregarded  as  surplusage.  It  is  imma- 
terial, therefore,  that  the  cause  of  action  is  described  in  one 
count  as  a  contract  made  by  the  defendant,  and  in  another  as  a 
contract  made  by  the  defendant  in   his  official  capacity.     The 


SEC.  Ud.]  ROLLINS   V.    MARSH.  453 

legal  liability  being  the  same  in  whichever  form  the  contract  is 
made,  there  is  no  inconsistency  in  the  counts. 

Accordingly,  in  Thacher  v.  Dinsmore,  5  Mass.  299,  the  action 
was  brought  on  two  promissory  notes,  by  which  the  defendant 
"  as  guardian  to  A.  L,,  an  insane  person,"  promised  to  pay  the 
plaintiffs  or  order  one  sum  on  a  day  certain  and  another  on  de- 
mand. There  were  two  additional  counts  on  the  same  notes, 
in  which  the  promises  were  alleged  to  have  been  made  by  the 
defendant  without  adding  his  capacity  of  guardian,  and  a  ver- 
dict having  been  found  for  the  plaintiffs  on  the  general  issue 
pleaded,  judgment  was  rendered  upon  it.  Parsons,  C.J.,  in 
giving  the  opinion  of  the  Court,  said  :  "  If  an  action  is  main- 
tainable against  any  person,  it  must  be  the  defendant  ;  for  the 
guardian  of  an  insane  person  cannot  make  his  ward  liable  to 
an  action  as  on  his  own  contract,  by  any  promise  which  the 
guardian  can  make.  Neither  can  the  defendant  be  sued  in  his 
capacity  of  guardian,  so  as  to  make  the  estate  of  his  ward  liable 
to  be  taken  in  execution  ;  for  the  judgment  is  not  against  the 
goods  and  estate  of  the  ward  in  his  hands,  but  against  himself. 
A  creditor  may  sue  the  insane  person,  who  shall  be  defended 
by  his  guardian,  and  in  that  case,  judgment  being  against  the 
insane  person,  it  may  be  satisfied  by  his  property.  The  de- 
fendant's description  of  himself  in  the  notes  as  guardian  cannot 
vary  the  form  of  action  ;  but  it  is  for  his  own  benefit,  that,  on 
payment  of  the  notes,  he  may  not  be  precluded  from  charging 
the  moneys  paid  to  the  account  of  his  ward."  See  also  Fors- 
ter  V.  Fuller,  6  Mass.  58  ;  Sumner  v.  Williams,  8  Mass.  162  ; 
Fiske  V.  Eldridge,  12  Gray,  474. 

The  writ  against  the  defendant  in  the  case  at  bar  orders  the 
sheriff  to  attach  the  goods  and  estate  of  "  Alexander  Marsh,  as 
he  was  the  guardian  of  Lucy  A.  Rollins,"  and  to  summon  "  the 
defendant"  to  appear,  etc.  This  is  a  writ  against  the  defendant 
personally,  and  is  the  sufficient  foundation  for  a  judgment 
against  him.  As  has  already  been  seen,  a  suit  on  a  demand 
against  a  ward  must  be  brought  against  the  ward,  not  against 
the  guardian,  and  the  form  of  writ  used  when  a  suit  is  brought 
against  an  administrator  on  a  contract  made  by  his  intestate  is 
not  appropriate.  In  such  case,  the  order  in  the  writ  is  to  attach 
the  goods  and  estate  which  were  of  the  intestate,  in  the  hands 
of  the  administrator.  Such  form  is  necessary  there,  because  a 
judgment  when  obtained  is  to  be  paid  out  of  the  estate  of  the 
intestate,  the  title  to  which  is  in  the  administrator,  not  out  of 
the  administrator's  own  estate,  and  the  writ  must  indicate 
whose  estate  is  to  be  attached,  if  any.  This  form  is  not  neces- 
sary in  the  case  of  a  ward,  because  the   title   to   the  estate  re- 


454  VANDERBILT   V.    SCHREYER.  [CHAP.  I. 

mains  in  him,  and  does  not  pass  to  his  guardian.  The  words 
"  as  he  was  the  guardian,"  etc.,  have  no  legal  effect  in  the  writ, 
and  may  be  disregarded  as  surplusage. 

The  original  contract  made  by  the  defendant  for  the  support 
of  his  ward  was  his  own  contract,  and  the  subsequent  arrange- 
ment made  for  further  compensation  to  the  plaintiff  was  his 
own  contract,  on  which  he  alone,  if  any  one,  was  liable  to  the 
plaintiff.  This  clearly  follows  from  the  doctrine  of  the  cases 
above  cited.  The  defendant  contends  that  this  subsequent 
arrangement  did  not  impose  any  liability  on  him,  because  it 
was  without  consideration.  The  parties  had  made  a  contract  in 
writing  with  which  the  plaintiff  had  become  dissatisfied,  and 
which  she  had  informed  the  defendant  that  she  should  not  fulfil 
unless  the  terms  were  modified.  If  she  had  abandoned  her 
contract,  he  might  have  made  a  new  arrangement  with  some 
one  else  for  the  support  of  his  ward,  and  enforced  whatever 
remedy  he  had  for  the  breach  against  the  plaintiff.  Instead  of 
this,  he  made  a  new  contract  with  her,  which  operated  as  a 
rescission  of  the  original  agreement.  Meanwhile  the  plaintiff 
had  continued  in  the  performance  of  her  original  agreement, 
which  was  recognized  by  both  parties  as  subsisting  and  bind- 
ing, till  it  was  rescinded  by  the  making  of  the  new  one.  The 
release  of  one  from  the  stipulations  of  the  original  agreement 
is  the  consideration  for  the  release  of  the  other  ;  and  the  mutual 
releases  are  the  consideration  for  the  new  contract,  and  are  suffi- 
cient to  give  it  full  legal  effect.  Cutter  v.  Cochrane,  ii6  Mass. 
408.  The  action  can  be  maintained,  and,  according  to  the 
terms  of  the  report,  there  must  be  judgment  on  the  verdict. 


PETER   J.    VANDERBILT,    Appellant,    v.    JOHN 
SCHREYER,   Impleaded,   etc..   Respondent. 

In  the  Court  of  Appeals  of  New  York,  March  6,  1883. 

{^Reported  in  91  New  York  Reports  392.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  first  judicial  department,  entered  upon  an  order 
made  June  ist,  1880,  which  reversed  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  decision  of  the  Court  on  trial  at  a 
Special  Term  and  dismissed  the  complaint.  (Reported  below, 
21  Hun,  537.) 

The  nature  of  the  action  and  the  material  facts  are  stated  in 
the  opinion. 


SEC.  11^.]  VANDERBILT   V.    SCHREYER.  455 

T.  M.  Tyng  for  appellant. 

John  L.  Lindsay  for  respondent. 

RuGER,  C.J.  This  was  an  action  to  foreclose  a  mortgage  for 
^5000  given  September  5th,  1873,  by  one  James  Dunseith  and 
wife  to  John  Schreyer,  and  by  him  assigned  to  the  plaintiff  on 
May  5th,  1874. 

Schreyer  was  made  a  party  defendant,  and  it  was  sought  to 
charge  him  with  the  payment  of  any  deficiency  that  might  arise 
upon  a  sale  of  the  mortgaged  premises,  upon  the  ground  that 
he  had  guaranteed  the  payment  of  the  mortgage  debt. 

Schreyer  answered,  and  after  admitting  the  assignment  and 
the  guaranty  of  payment  alleged  by  way  of  defence,  that  on 
February  2d,  1874,  the  plaintiff  entered  into  a  contract  with 
George  Gebhard  and  Matthew  L.  Ritchie  for  the  erection  by 
him  of  certain  buildings  for  them  upon  certain  lots  in  the  city 
of  New  York,  for  which  he  was  to  receive  $8175,  to  be  paid  as 
follows  :  "  When  the  said  houses  are  topped  out,  a  payment  of 
^5000  by  assignment  of  a  bond  and  mortgage  held  by  John 
Schreyer  on  the  property  of  Anna  Maria  Schreyer,  No.  350  West 
Forty-second  Street,  New  York  City,"  and  the  balance,  amount- 
ing to  $3175,  when  the  houses  should  be  fully  completed.  Van- 
derbilt  commenced  performance  of  his  contract  and  continued 
until  he  became  entitled  to  the  assignment  of  the  $5000  mort- 
gage. Schreyer  thereupon  offered  to  assign  it  to  the  plaintiff, 
but  the  latter  refused  to  accept  an  assignment  unless  Schreyer 
would  also  guarantee  payment.  The  defendant  refused  to  do 
this,  and  Vanderbilt  then  suspended  work  upon  the  buildings 
for  about  two  months.  The  defendant  then  under  protest,  and 
believing,  as  he  alleges,  that  he  was  acting  under  compulsion, 
executed  the  assignment  with  the  guaranty  in  question.  The 
plaintiff  then  completed  his  contract  and  received  the  balance 
of  the  consideration.  The  answer  further  states  "  that  it  was 
neither  under  said  contract  or  otherwise  made  a  condition  of 
the  plaintiff's  accepting  the  assignment  of  said  mortgage  that 
this  defendant  or  any  other  person  should  guarantee  the  pay- 
ment thereof,"  and  further  "  that  no  consideration  ever  passed 
to  him  or  his  principals  for  such  guaranty,  and  the  same  was  and 
is  null  and  void." 

Upon  the  trial  of  the  action  at  Special  Term  the  plaintiff  pro- 
duced and  proved  the  mortgage  in  question,  and  also  an  assign- 
ment from  defendant  to  plaintiff  in  the  usual  form,  but  contain- 
ing the  following  clause  :  "  And  I  hereby  guarantee  the  pay- 
ment of  said  bond  and  mortgage  for  $5000  and  interest  from 
May  5ih,  1874,  by  due  foreclosure  and  sale."  The  assignment 
and  guaranty  were  sealed  and   executed   in   the  presence  of  a 


456  VANDERBILT  V.    SCHREYER.  [CHAP.  I. 

subscribing  witness.  The  plaintiff  thereupon  rested,  and  the 
defendant  offered  to  prove  in  substance  the  facts  alleged  in  his 
answer,  which  offer  was  objected  to  and  excluded  upon  the 
ground  that  such  answer  did  not  set  up  facts  constituting  a 
defence.  The  defendant  excepted  to  such  ruling.  The  Court 
thereupon  held  that  said  guaranty  was  absolute,  and  ordered 
judgment  against  Schreyer  for  the  deficiency  which  had  previ- 
ously been  ascertained  by  a  sale  of  the  premises.  An  appeal 
was  taken  to  the  General  Term,  which  reversed  the  judgment 
and  directed  a  dismissal  of  the  complaint  upon  the  ground  that 
Schreyer  was  improperly  made  a  defendant,  because  the  guar- 
anty in  question  was  in  effect  a  guaranty  of  collection  only,  and 
that  no  right  of  action  arose  thereon  until  after  the  amount  of 
the  deficiency  had  been  ascertained  by  a  judicial  sale  of  the 
mortgaged  premises. 

We  differ  in  our  conclusion  from  that  reached  by  both  of  the 
courts  below. 

A  more  serious  question,  however,  arises  under  the  exception 
taken  to  the  rulings  of  the  Special  Term  excluding  the  evidence 
offered  by  the  defendant  to  prove  the  facts  stated  in  his  answer, 
showing  that  the  guaranty  was  without  consideration.' 

In  considering  this  question  the  allegations  in  the  answer 
must  be  assumed  to  be  true,  and  that  the  defendant  would  have 
proved  them  if  he  had  not  been  precluded  by  the  rulings  of  the 
Court  from  doing  so.  The  answer,  while  perhaps  inartificially 
drawn,  certainly  alleged  all  of  the  facts  necessary  to  show  that 
neither  Gebhardt  and  Ritchie,  nor  the  plaintiff,  had  received  any 
consideration  for  the  guaranty  in  question.  This  he  should 
have  been  allowed  to  prove.  The  production  of  the  assignment 
in  evidence,  purporting  to  be  executed  "  for  value  received," 
and  being  under  seal  waiS  Jfrhna  facie  evidence  only  of  a  valuable 
consideration.  It  was  not  conclusive  and  could  be  disproved  if 
it  was  in  the  defendant's  power  to  do  so.  (3  R.  S.  [6th  ed.] 
672,  §  124  ;  Bookstaver  v.  Jayne,  60  N.  Y.  146  ;  Anthony  v. 
Harrison,  14  Hun,  198  ;  affirmed  in  this  Court,  74  N.  Y.  613.) 

The  incorporation  of  this  guaranty  into  the  assignment  for 
which  there  was  a  consideration  does  not  affect  the  question. 
It  was  not  essential  to  the  assignment,  and  was,  so  far  as  its  legal 
effect  was  concerned,  a  separate  instrument,  and  must  be  sup- 
ported upon  a  sufficient  consideration  or  treated  as  nudum  pactum. 

It  is  quite  clear  that  the  plaintiff  had  no  right  to  demand  this 
guaranty  by  the  terms  of  his  original  contract  with  Gebhardt 
and  Ritchie.  That  was  satisfied  by  a  mere  naked  transfer  of 
his  interest  in  the  mortgage. 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


SEC.  nd.]  VANDEKBILT   V.    SCHREYER.  45/ 

It  was  held  in  Van  Eps  v.  Schenectady  (12  Johns.  436)  that 
an  agreement  to  execute  a  deed  of  lands  was  satisfied  by  the 
execution  of  a  deed,  without  warranty  or  covenants.  So  it  has 
been  held  "that  a  party  has  no  right  to  impose  any  conditions  to 
the  performance  of  a  contract,  except  those  contained  in  the 
contract  itself.  (Brown's  Water  Furnace  Co.  v.  French,  34  How. 
Pr.  94.)  It  being  clear  that  Vanderbilt  had  no  legal  right  to 
require,  as  a  condition  to  the  fulfilment  of  his  contract,  the  per- 
formance of  an  act  not  required  by  the  contract,  it  is  difficult 
to  see  what  benefit  he  has  bestowed  or  what  inconvenience  he 
has  suffered  in  return  for  the  undertaking  assumed  by  the  de- 
fendant. He  promises  to  do  only  that  which  he  was  before 
legally  bound  to  perform.  Even  though  it  lay  in  his  power  to 
refuse  to  perform  his  contract,  he  could  do  this  only  upon  pay- 
ing the  other  party  the  damages  occasioned  by  his  non-perform- 
ance, and  that  in  contemplation  of  law  would  be  equivalent  to 
performance.  He  had  no  legal  or  moral  right  to  refuse  to  per- 
form the  obligation  of  the  contract  into  which  he  had  upon  a 
good  consideration  voluntarily  entered. 

There  is  no  evidence  in  support  of  a  claim  that  this  guaranty 
was  given  as  a  compromise  of  any  dispute  arising  with  reference 
to  the  obligations  of  the  plaintiff  under  his  contract  with  Geb- 
hardt  and  Ritchie.  The  case  is  not,  therefore,  brought  within 
the  cases  in  which  a  promise  has  been  upheld  on  the  theory  that 
it  was  made  in  settlement  of  a  controversy  over  disputed  claims. 
The  authorities  seem  quite  uniformly  to  show  the  inadequacy 
of  the  consideration  alleged  for  the  guaranty  in  question.  In 
Geer  v.  Archer  (2  Barb.  420),  the  defendant  visited  the  plaintiff 
to  pay  her  an  instalment  upon  a  mortgage  given  by  him  a  few 
weeks  before  on  a  purchase  of  land.  She  complained  that  she 
had  not  received  the  fair  value  of  her  land  upon  such  purchase. 
The  defendant  offered  to  give  her  his  note  for  $200  to  satisfy 
her  complaints.  She  replied  that  she  would  be  satisfied  with 
that,  whereupon  the  note  in  question  was  given.  It  was  held 
that  this  note  was  void  for  want  of  consideration.  So  where 
land  was  sold  and  described  in  the  deed  as  containing  a  certain 
quantity,  and  a  deficiency  was  afterward  discovered,  it  was  held 
that  there  was  no  obligation  on  the  grantor  to  compensate  the 
grantee  for  such  deficiency,  and  a  promise  to  pay  the  same  was 
without  consideration.  (Smith  v.  Ware,  13  Johns.  257  ;  Ehle  v. 
Judson,  24  Wend.  97.) 

Pollock  states  the  rule  as  follows  :  That  "  neither  the  promise 
to  do  a  thing,  nor  the  actual  doing  of  it,  will  be  a  good  consid- 
eration if  it  is  a  thing  which  the  party  is  bound  to  do  by  the 
general  law,  or  by  a  subsisting  contract  with   the  other  party."' 


458  VANDERBILT   V.    SCHREYER.  [cHAP.  I. 

(Pollock  on  Principles  of  Contracts,  i6i  ;  Crosby  v.  Wood, 
6  N.  Y.  369  ;  Deacon  v.  Gridley,  15  C  B.  295.)  "  Nor  is  the 
performance  of  that  which  the  party  was  under  a  previous  valid, 
legal  obligation  to  do  a  sufficient  consideration  for  a  new  con- 
tract." (2  Parsons  on  Contracts,  437.)  When  certain  sailors 
had  signed  articles  to  complete  a  voyage,  but  at  an  intermediate 
port  refused  to  go  on,  and  the  captain  thereupon  promised  to 
pay  them  increased  wages,  it  was  held  that  the  promise  was 
without  consideration.  (Bartlett  v.  Wyman,  14  Johns.  260.)  A 
firm  having  a  contract  to  build  a  railroad  found  the  contract 
unprofitable,  whereupon  the  railroad  company  promised  if  they 
would  go  on  and  complete  the  contract  they  would  repay  to  the 
contractors  all  of  the  obligations  which  they  had  or  would  incur 
in  consequence  of  their  completion  of  the  work.  Held  no  con- 
sideration.     (Ayres  v.  The  C,  R.  I.  &  P.  R.  Co.,  52  Iowa,  478.) 

When  a  mortgagor,  as  a  condition  to  the  payment  of  his 
mortgage,  exacted  from  the  mortgagee  an  obligation  that  he 
would  procure  the  cancellation  of  a  certain  outstanding  bond 
executed  by  the  mortgagor,  or  pay  him  the  sum  of  $100,  said 
bond  being  given  to  indemnify  against  some  apparent  incum- 
brance, it  was  held,  that  it  not  being  shown  that  there  was  any 
incumbrance  existing  against  the  land,  the  obligation  was  with- 
out consideration.  (Conover  v.  Stillwell,  34  N.  J.  L.  54.) 
When  the  plaintiff  agreed  to  enter  the  military  service  of  the 
United  States  to  the  credit  of  the  town  of  Tobin  for  $100,  and 
on  arriving  at  the  place  of  enlistment,  being  offered  an  advanced 
price  by  others,  refused  to  perform  unless  they  would  pay  him 
$250  additional,  held  that  an  obligation  to  pay  him  the  addi- 
tional amount  was  void  for  want  of  consideration.  (Reynolds  v. 
Nugent,  25  Ind.  328.)  A  sailor  signed  articles  for  a  voyage  to 
Melbourne  and  home  at  ^^3  per  month  ;  several  of  the  crew 
deserted  at  Melbourne.  The  captain,  to  induce  plaintiff  to  re- 
main, signed  fresh  articles  for  six  pounds  per  month.  Held  no 
consideration  for  the  promise.  (Harris  v.  Carter,  3  Ellis  & 
Blackburn,  559  ;  to  same  effect  Stilk  v.  Myrick,  2  Camp.  317.) 
When  defendants  gave  plaintiff's  notes  to  provide  funds  to  take 
up  obligation,  which  plaintiff  had  previously  contracted  to  pay, 
held  no  consideration.  (Mallalieu  v.  Hodgson,  16  Ad.  &  El. 
[N.  S.]  689.)  A  promise  to  pay  an  attorney  additional  compen- 
sation to  attend  as  a  witness,  after  he  has  been  duly  subpoenaed, 
is  without  consideration.  The  attorney  did  nothing  except 
what  he  was  legally  bound  to  do.  (Smithett  v.  Blythe,  i  Barn.  & 
Ad.  514.) 

It  would  doubtless  be  competent  for  parties  to  cancel  an  ex- 
isting contract  and  make  a  new  one  to  complete  the  same  work 


SEC.  11^/.]         ROGERS    Ct   al.   V.    ROGERS   &    BROTHER.  459 

at  a  different  rate  of  compensation,  but  it  seems  tliat  it  \V(jul(l 
be  essential  to  its  validity  that  there  should  be  a  valid  cancella- 
tion of  the  original  contract.  Such  was  the  case  of  Lattimore  v. 
Harsen  (14  Johns.  330). 

It  necessarily  follows  from  these  authorities  that  the  plaintiff 
had  no  right  to  impose,  as  a  condition  to  the  performance  of 
his  contract,  tliat  the  payment  of  said  mortgage  should  be  guar- 
anteed. Although  the  defendant  was  not  a  party  to  the  original 
contract,  and  the  consideration  and  contract  between  him,  Geb- 
hardt  and  Ritchie  does  not  appear,  yet  we  must  assume  that  he 
acted  at  the  request  of  Gebhardt  and  Ritchie  and  was  required 
only  by  such  contract  to  execute  such  an  assignment  as  Geb- 
hardt and  Ritchie  had  contracted  to  give.  The  answer  at  all 
events  sets  up  that  he  received  no  consideration  from  any  one 
for  the  guaranty  sued  upon. 

The  answer  also  alleges  that  the  sole  consideration  received 
for  this  guaranty  was  the  performance  by  the  plaintiff  of  his 
contract  with  Gebhardt  and  Ritchie. 

\Vc  think  this  answer  sets  forth  a  defence  to  the  action,  and 
inasmuch  as  the  defendant  has  been  erroneously  deprived  of 
the  opportunity  of  proving  it,  if  in  his  power  to  do  so,  that  a 
new  trial  should  be  ordered. 

The  judgment,  therefore,  of  the  General  Term  dismissing  the 
complaint  should  be  reversed,  and  its  order  reversing  the  judg- 
ment ordered  against  the  defendant  at  Circuit  affirmed,  and  a 
new  trial  ordered,  with  costs  to  abide  the  event. 

All  concur,  except  Andrews  and  Danforth,  JJ.,  not  voting. 

Judgment  accordingly. 


ALVAN   ROGERS  and  Others  v.  ROGERS  &  BROTHER. 

In  the  Supreme  Judicial  Court  of  Massachusetts. 
June  20,  1885. 

[Reported  z'fi  139  Massachusetts  Reports  440.  j 

Contract  for  the  breach  of  an  agreement  to  sell  goods. 
Trial  in  the  Superior  Court,  without  a  jury,  before  Gardner,  J., 
who  reported  the  case  for  the  determination  of  this  Court,  in 
substance  as  follows  : 

The  plaintiffs  introduced  evidence  tending  to  show  that,  on 
or  about  July  8th,  1879,  the  defendant,  a  manufacturing  cor- 
poration located  in  Connecticut,  by  its  agent,  C.  A.  Hamilton, 
orally  agreed  to  sell  and  deliver  to  the  plaintiffs  in  Boston,  from 
time  to  time,   as  ordered  by  them,   such   silver-plated   ware — 


460  ROGERS   et   al.    V.    ROGERS   &    BROTHER.         [cHAP.  I. 

namely,  spoons  and  forks — as  they  might  need  in  their  business, 
and  order  during  the  season — that  is,  between  July  and  Jan- 
uary ist,  1880 — at  stipulated  discounts  from  certain  list  prices, 
and  that  the  goods  were  to  be  paid  for  at  the  end  of  each 
month  ;  that,  pursuant  to  this  contract,  and  on  the  day  of  its 
date  and  at  different  times  previously  to  October  14th,  1879,  the 
plaintiffs  ordered  goods  amounting  in  the  aggregate  to  several 
thousand  dollars,  a  part  of  which  were  delivered  and  paid  for 
according  to  the  contract  ;  that,  on  said  October  14th,  the  de- 
fendant utterly  repudiated  its  contract,  and  refused  to  fill  any 
of  the  unfilled  orders,  or  to  receive  and  fill  any  future  orders, 
except  upon  the  express  promise  on  the  part  of  the  plaintiffs  to 
pay  for  the  goods  at  a  less  rate  of  discount  than  that  stipulated 
in  the  contract,  the  effect  of  which  was  to  advance  the  price  of 
said  goods  about  8^  per  cent  on  the  agreed  price  ;  that  the 
plaintiffs,  after  several  days'  delay,  and  not  being  able  to  buy 
the  goods  elsewhere  on  so  favorable  terms,  or  at  any  price, 
agreed  to  buy  them  of  the  defendant  during  the  remainder  of 
the  season  upon  the  new  terms  demanded  by  the  defendant. 

All  the  evidence  relating  to  the  repudiation  and  refusal  of  the 
defendant,  and  of  the  subsequent  agreement  of  the  parties,  is 
contained  in  the  following  correspondence  : 

On  October  14th,  1879,  the  defendant  wrote  to  the  plaintiffs 
as  follows  :  "  My  attention  has  just  been  called  to  the  fact  that, 
in  remitting  for  bills  for  the  months  of  July  and  August,  you 
have  deducted  50  per  cent  in  place  of  40,  and  then  taken  in 
addition  all  extra  discounts  allowable  for  quantity  and  cash 
settlements.  1  do  not  know  upon  what  authority  or  why  you 
did  this.  I  cannot  think  that  any  one  can  have  offered  you 
such  terms.  The  difference  amounts  to  about  20  per  cent,  and, 
of  course,  it  is  absurd  to  presume  that  we  can  stand  any  such 
deduction  from  our  bills  ;  perhaps  it  was  done  inadvertently. 
I  write  now  that  there  may  be  no  misapprehension  in  the  future. 
We  cannot  allow  the  change  of  discount  from  40  per  cent,  as 
we  invariably  invoice,  and  expect  the  figures  we  give,  less,  if 
you  please,  the  extra  discounts  for  rebates  and  cash."  And, 
on  October  20th,  as  follows:  "We  wrote  you  under  date  of 
October  14th,  in  regard  to  prices  and  terms  of  settlement,  to 
which  we  have  no  response.  We  are  awaiting  your  reply  before 
shipping  goods  ordered,  as  we  must  know  that  you  accept  our 
terms  as  therein  stated,  else  we  must  decline  to  fill  your  orders." 

On  October  22d  the  plaintiffs  sent  the  following  telegram  to 
the  defendant  :  "  Terms  accepted  for  the  present.  Ship  every- 
thing next  express."  And  on  October  24th  the  following  : 
"  We  telegraphed  acceptance  terms.     Are  goods  coming  ?" 


SEC.  lU/.]        ROGERS    rf   nl.    v.    ROGERS   &    15ROTIIER.  46 1 

On  October  24th  tlie  defendant  wrote  to  the  plaintiffs  as  fol- 
lows :  "  We  are  in  receipt  of  your  telegram  accepting  our 
terms,  and  shall  be  able  to  ship  some  goods  to  you  to-morrow. 
The  telegram  we  have  reference  to  is  yours  of  to-day.  We  have 
not  previousl}'  received  one." 

On  October  25th  the  plaintiffs  wrote  to  the  defendant  as  fol- 
lows :  "  Enclosed  settlement  is  in  accordance  with  written 
agreement  with  Mr.  C.  A.  Hamilton,  and  cannot  be  affected  by 
our  telegram,  which  you  should  have  received.  It  reads,  '  Octo- 
ber 22d,  terms  accepted  for  the  present.  Ship  everything  next 
express.'  We  were  obliged  to  consent  to  this  to  get  our  goods 
sold  by  us.  We  trust,  however,  you  will  waive  your  repudia- 
tion of  contract  with  us  when  we  come  to  a  better  understand- 
ing after  a  personal  interview." 

On  October  27th  the  defendant  replied  by  letter  as  follows  : 
"  We  are  in  receipt  of  your  favor  of  the  25th,  in  which  you  re- 
fer to  a  '  written  agreement  with  C.  A.  Hamilton  '  justifying 
the  terms  of  settlement  you  claim  on  goods  sent  you  during  the 
months  of  July,  August,  and  September.  We  know  nothing  of 
any  agreement  whatever,  and  whatever  it  may  be,  in  so  far  as 
it  differs  from  my  offer  of  October  14th,  you  must  consider  it 
as  cancelled  or  '  repudiated  '  on  all  goods  invoiced  by  us  since 
October  14th.  It  is  only  by  the  recognition  of  the  terms  therein 
proposed  that  you  can  expect  us  to  fill  your  orders  now  in  hand 
or  that  you  may  send  us  in  the  future." 

Under  the  agreement  disclosed  in  the  correspondence,  the 
plaintiffs,  from  time  to  time  during  the  remainder  of  the  season, 
ordered  goods  of  the  defendant,  and  they  were  shipped  and 
paid  for  according  to  the  agreement  contained  in  the  defend- 
ant's letter  of  October  14th,  and  the  plaintiffs'  telegram  of  Octo- 
ber 24th.  It  was  also  admitted  that  the  orders  unfilled  on  Octo- 
ber 14th  were  subsequently  filled  and  paid  for  at  said  advanced 
prices. 

It  was  agreed  that  the  total  amount  of  orders  given  prior  to 
October  14th,  and  filled  subsequently  at  said  advanced  prices, 
was  $1604.99  ^t  list  prices  ;  that  the  difference  between  the  price 
originally  agreed  upon  and  said  advanced  price  was  $130.08  ; 
that  the  amount  of  orders  given  after  October  14th,  and  filled 
at  said  advanced  price,  was  $7380.13  at  list  prices  ;  and  that  the 
difference  between  the  price  originally  agreed  upon  and  said 
advanced  price  was  $578.15. 

The  judge  found,  as  of  fact,  that  the  contract  was  made  as 
alleged. 

The  plaintiffs  asked  the  judge  to  rule  that  the  defendant, 
having,  by  its  letters  of  October  14th  and  20th,  repudiated  its 


462  ROGERS   Ct  al.   V.    ROGERS   &   BROTHER.         [chap.  i. 

contract  of  July  8th,  and  refused  to  deliver  any  more  goods 
under  said  contract,  had  committed  a  breach  of  that  contract  ; 
that  the  plaintiffs  had  not  waived  said  breach  ;  that,  for  said 
breach,  the  defendant  was  liable  in  this  action  for  the  damages 
thereby  sustained  by  the  plaintiffs  ;  and  that  there  was  no  re- 
scission of  the  contract  of  July  8th  disclosed  by  the  correspond- 
ence.    The  judge  declined  so  to  rule. 

The  defendant  contended  that  there  was  no  contract  between 
the  parties  ;  that  if  their  dealings  resulted  in  a  contract,  no 
action  could  be  maintained  thereon,  under  the  Statute  of 
Frauds  ;  that  the  defendant's  letter  of  October  14th,  and  the 
plaintiffs'  telegram  of  October  24th,  constituted  a  rescission  of 
the  same  ;  that  the  defendant's  revocation  of  the  contract,  if 
any,  by  said  letter  of  October  14th,  was  lawful  ;  that  the  pay- 
ment of  said  advanced  prices  were  voluntary  payments  ;  and 
that,  upon  all  the  evidence,  the  plaintiffs  could  not  maintain 
this  action. 

The  judge  ruled  that  the  payment  of  said  advanced  prices  by 
the  plaintiffs  was  a  voluntary  payment  ;  and  on  this  ground 
alone  found  for  the  defendant. 

If  the  judge  erred  in  said  ruling,  or  refusal  to  rule,  and  if, 
upon  the  foregoing  evidence  and  findings,  the  plaintiffs  could 
maintain  their  action,  judgment  was  to  be  entered  in  their  favor 
for  the  sum  of  $130.08,  or  the  sum  of  $578.15,  or  both  sums,  as 
the  Court  might  decide  the  plaintiffs  entitled  ;  otherwise,  for 
the  defendant. 

D.  C.  Linscott  for  the  plaintiffs. 

S.  H.  Tytig  for  the  defendant. 

Field,  J.  We  infer  from  the  report  that  the  Court  found 
that  the  contract  was  not  merely  an  offer  by  the  defendant  to 
sell,  which  would  have  been  revocable  at  any  time,  except  so 
far  as  it  had  been  accepted  by  the  plaintiffs  in  giving  orders, 
and  would  thus  be  a  contract  only  to  the  extent  of  those  orders  ; 
but  that  it  was  a  contract  whereby  the  plaintiffs  agreed  to  buy, 
and  the  defendant  agreed  to  sell,  such  of  the  goods  dealt  in  by 
the  defendant  as  the  plaintiffs  needed  in  their  trade  during  the 
time  specified.  See  Dickinson  v.  Dodds,  2  Ch.  D.  463.  The 
plaintiffs  were  bound  in  law  to  pay  for  the  goods  sent  after  the 
new  agreement  was  made  according  to  the  prices  stipulated  in 
that  agreement.  In  this  Commonwealth  the  delivery  of  the 
goods  by  the  defendant  under  the  new  agreement,  whether  they 
were  sent  to  fill  the  orders  given  before  October  14th,  or  the 
orders  given  after,  is  considered  a  sufficient  consideration  for 
the  new  promise  of  the  plaintiff.  Whether  the  new  agreement 
was  substituted  for  the  old,  and  thus  operated  as  a  rescission 


SKC.  iw/.]       KING  i:  DULUTII,  MISSARE  &  X.  R.  K.  CO.  463 

or  discharge  of  it,  must  be  determined  by  the  intention  of  the 
parties,  to  be  ascertained  from  their  correspondence  and  con- 
duct. Munroe  v.  Perkins,  9  Pick.  29S  ;  Cummings  v.  Arnold, 
3  Met.  486  ;  Stearns  ?'.  Hall,  9  Cush.  31  ;  Holmes  v.  Doane, 
9  Cush.  135  ;  Peck  v.  Requa,  13  Gray,  407  ;  Lawrence?'.  Davey, 
28  Vt.  264  ;  Stewart  ?'.  Keteltas,  36  N.Y.  388  ;  Cooke  v.  Murphy, 
70  111.  96  ;  Moore  v.  Detroit  Locomotive  Works,  14  Midi.  266. 

If  we  assume  that  the  original  agreement  was  sufficiently 
definite  to  constitute  a  valid  contract,  as  it  was  a  continuing 
contract,  the  parties  could  clearly  substitute  for  it  a  new  con- 
tract, which  should  determine  their  rights  and  liabilities  after 
the  new  contract  was  made,  and  this  would  operate  as  a  waiver 
or  discharge  of  the  first  contract  as  to  future  orders  and  deliv- 
eries, unless  it  appeared  that  the  first  contract  had  been  broken 
by  an  absolute  refusal  on  the  part  of  the  defendant  to  perform 
it,  and  that  the  new  contract  was  not  intended  to  be  a  discharge 
of  the  breach.  As  to  the  orders  given  before  October  14th, 
which  the  defendant  had  refused  to  fill,  if  the  new  contract  by 
its  terms  covered  those,  we  think  tiie  same  rule  holds.  If  the 
parties  agreed  that  these  orders  should  be  filled  at  the  prices 
stipulated  for  in  the  new  contract,  without  considering  whether 
the  new  agreement  would  of  itself  be  a  discharge  of  these  par- 
tial breaches,  performance  of  the  new  agreement  would  operate 
as  a  discharge,  or  an  accord  and  satisfaction,  unless  it  appeared 
that  such  was  not  the  intention  of  the  parties.  Such  a  substi- 
tuted agreement  J>ri//ia /aci'e  takes  the  place  of  the  original  agree- 
ment as  to  everything  remaining  unperformed. 

Our  construction  of  the  correspondence  and  conduct  of  the 
parties  is,  that  it  was  not  understood  or  intended  by  both  par- 
ties that  the  plaintiffs  should  retain  their  right  of  action,  if  they 
had  any,  for  the  alleged  breach  of  the  original  contract. 

Judgment  for  the  defendant. 


GEORGE    R.  KING  v.   DULUTH,  MISSABE   &    NORTH- 
ERN   RAILWAY    COMPANY. 

In  the  Supreme  Court  of  Minnesota,  June  28,  1895. 
\Reported  in  61  Minnesota  Reports  482.] 

Appeal  by  defendant  from  an  order  of  the  District  Court  for 
St.  Louis  County,  Ensign,  J.,  overruling  a  demurrer  to  both 
causes  of  action  in  the  complaint.  Reversed  as  to  the  first 
cause  of  action.     Affirmed  as  to  the  second  cause  of  action. 

Joseph  B.  Cotton  and  George  Wehvood  Murray  for  appellant. 

y.  L.   Washburn  and  L.  E.  Judson,  Jr.,  for  respondent. 


464  KING  V.  DULUTII,  MISSABE  &  N.   R.  R.  CO.       [CHAP.  I. 

Start,  C.J.*  This  is  an  action  brought  by  the  plaintiff,  as 
surviving  partner  of  the  firm  of  Wolf  &  King,  to  recover  a  bal- 
ance claimed  to  be  due  for  the  construction  of  a  portion  of  the 
defendant's  line  of  railway.  The  complaint  alleges  two  sup- 
posed causes  of  action,  to  each  of  which  the  defendant  demurred 
on  the  ground  that  neither  states  facts  constituting  a  cause  of 
action.  From  an  order  overruling  the  demurrer  the  defendant 
appealed. 

I.  The  complaint  for  a  first  cause  of  action  alleges,  among 
other  things,  substantially,  that  in  January,  1893,  the  firm  of 
Wolf  &  King  entered  into  three  written  contracts  with  the  presi- 
dent and  representative  of  the  defendant  for  the  grading,  clear- 
ing, grubbing,  and  construction  of  the  roadbed  of  its  railway 
for  a  certain  stipulated  price  for  each  of  the  general  items  of 
work  and  labor  to  be  performed  ;  that  the  firm  entered  upon 
the  performance  of  such  contracts,  but  in  the  latter  part  of  Feb- 
ruary, 1893,  in  the  course  of  such  performance,  unforeseen  diffi- 
culties of  construction,  involving  unexpected  expenses,  and  such 
as  were  not  anticipated  by  the  parties  to  the  contracts,  were  en- 
countered. That  the  firm  of  Wolf  &  King  found  that  by  reason 
of  such  difficulties  it  would  be  impossible  to  complete  the  con- 
tracts within  the  time  agreed  upon  without  employing  an  addi- 
tional and  an  unusual  force  of  men  and  means,  and  at  a  loss  of 
not  less  than  $40,000  to  them,  and  consequently  they  notified 
the  representative  of  the  defendant  that  they  would  be  unable 
to  go  forward  with  the  contracts,  and  unable  to  complete  or 
prosecute  the  work.  Thereupon  such  representative  entered 
into  an  agreement  with  them  modifying  the  written  contracts, 
whereby  he  agreed  that  if  they  would  "  go  forward  and  prose- 
cute the  said  work  of  construction,  and  complete  said  contract," 
he  would  pay  or  cause  to  be  paid  to  them  an  additional  consid- 
eration therefor,  up  to  the  full  extent  of  the  cost  of  the  work, 
so  that  they  should  not  be  compelled  to  do  the  work  at  a  loss 
to  themselves  ;  that  in  consideration  of  such  promise  they 
agreed  to  forward  the  work  rapidly,  and  force  the  same  to  com- 
pletion, in  the  manner  provided  in  the  specifications  for  such 
work,  and  referred  to  in  such  contracts.  That  in  reliance  upon 
the  agreement  modifying  the  former  contracts,  and  in  reliance 
upon  such  former  contracts,  they  did  prosecute  and  complete 
the  work  in  accordance  with  the  contracts  as  so  modified  by  the 
oral  agreement,  to  the  satisfaction  of  all  parties  in  interest. 
That  such  contracts  and  the  oral  contract  modifying  them 
were  duly  ratified  by  the  defendant,  and  that  the  actual  cost 
of  such  construction  was  not  less  than  $30,000  in  excess  of  the 
'  Buck,  J.,  took  no  part. 


SEC,  nd.]      KING  V.  DULUTH,  MISSABE  &  N.  R.  R.  CO.  465 

stipulated  amount    provided   for   in   the    original    written    con- 
tracts. 

It  is  claimed  by  appellant  that  the  complaint  shows  no  con- 
sideration for  the  alleged  promise  to  pay  extra  compensation 
for  the  work  ;  that  it  is  at  best  simply  a  promise  to  pay  the  con- 
tractors an  additional  compensation  if  they  would  do  that  which 
they  were  already  legally  bound  to  do.  The  general  rule  is 
that  a  promise  of  a  party  to  a  contract  to  do,  or  the  doing  of 
that  which  he  is  already  under  a  legal  obligation  to  do  by  the 
terms  of  the  contract,  is  not  a  valid  consideration  to  support  the 
promise  of  the  other  party  to  pay  an  additional  compensation 
for  such  performance,  i  Chitty,  Cont.  60  ;  Pollock,  Cont.  176 
(161)  ;  Leake,  Cont.  621.  In  other  words,  a  promise  by  one 
party  to  a  subsisting  contract  to  the  opposite  party  to  prevent 
a  breach  of  the  contract  on  his  part  is  without  consideration. 
The  following  cases  sustain  and  illustrate  the  practical  applica- 
tion of  the  rule.  Ayers  ?'.  Chicago,  R.  I.  &  P.  R.  Co.,  52  Iowa, 
478,  3  N.  W.  522  ;  McCarty  v.  Hampton  B.  Ass'n,  61  Iowa,  287, 
16  N.  W.  114  ;  Lingenfelder  v.  Wainwright  B.  Co.,  103  Mo.  578, 
15  S.  W.  844  ;  Vanderbilt  v.  Schreyer,  91  N.  Y.  392  ;  Reynolds  v. 
Nugent,  25  Ind.  328  ;  Robinson  v.  Jewett,  116  N.  Y.  40,  22  N.  E. 
224  ;  Wimer  z;.  Worth  Tp.,  104  Pa.  St.  317. 

If  the  allegations  of  the  complaint,  when  taken  together,  are 
in  legal  effect  simply  that  the  contractors,  finding  by  the  test 
of  experience  in  the  prosecution  of  the  work  that  they  had 
agreed  to  do  that  which  involved  a  greater  expenditure  of 
money  than  they  calculated  upon,  that  they  had  made  a  losing 
contract,  and  thereupon  notified  the  opposite  party  that  they 
were  unable  to  proceed  with  the  work,  and  he  promised  them 
extra  compensation  if  they  would  perform  their  contract,  the 
case  is  within  the  rule  stated,  and  the  demurrer  ought  to  have 
been  sustained  as  to  the  first  cause  of  action. 

It  is  claimed,  however,  by  the  respondent,  that  such  is  not 
the  proper  construction  of  the  complaint,  and  that  its  allega- 
tions bring  the  case  within  the  rule  adopted  in  several  States, 
and  at  least  approved  in  our  own,  to  the  effect  that  if  one  party 
to  a  contract  refuses  to  perform  his  part  of  it  unless  promised 
some  further  pay  or  benefit  than  the  contract  provides,  and  such 
promise  is  made  by  the  other  party,  it  is  supported  by  a  valid 
consideration,  for  the  making  of  the  new  promise  shows  a  re- 
scission of  the  original  contract  and  the  substitution  of  another 
In  other  words,  that  the  party,  by  refusing  to  perform  his  con- 
tract, thereby  subjects  himself  to  an  action  for  damages,  and 
the  opposite  party  has  his  election  to  bring  an  action  for  the 
recovery  of  such  damages  or  to  accede  to  the  demands  of  his 


466  KING  V.  DULUTH,  MISSABE  &  N.  R.  R.  CO.       [CHAP.  1, 

adversary  and  make  the  promise  ;  and  if  he  does  so  it  is  a  re- 
linquishment of  the  original  contract  and  the  substitution  of  a 
new  one.  Munroe  v.  Perkins,  9  Pick.  298  ;  Bryant  v.  Lord, 
19  Minn.  342  (396)  ;  Moore  v.  Detroit  L.  Works,  14  Mich.  266  ; 
Goebel  v.  Linn,  47  Mich.  489,  11  N.  W.  284  ;  Rogers  v.  Rogers, 
139  Mass.  440,  I  N.  E.  122. 

The  doctrine  of  these  cases  as  it  is  frequently  applied  does 
not  commend  itself  either  to  our  judgment  or  our  sense  of  jus- 
tice, for  where  the  refusal  to  perform  and  the  promise  to  pay 
extra  compensation  for  oerformance  of  the  contract  are  one 
transaction,  and  there  are  no  exceptional  circumstances  making 
it  equitable  that  an  increased  compensation  should  be  demanded 
and  paid,  no  amount  of  astute  reasoning  can  change  the  plain 
fact  that  the  party  who  refuses  to  perform,  and  thereby  coerces 
a  promise  from  the  other  party  to  the  contract  to  pay  him  an 
increased  compensation  for  doing  that  which  he  is  legally  bound 
to  do,  takes  an  unjustifiable  advantage  of  the  necessities  of  the 
other  party.  To  hold,  under  such  circumstances,  that  the  party 
making  the  promise  for  extra  compensation  is  presumed  to  have 
voluntarily  elected  to  relinquish  and  abandon  all  of  his  rights 
under  the  original  contract,  and  to  substitute  therefor  the  new 
or  modified  agreement,  is  to  wholly  disregard  the  natural  infer- 
ence to  be  drawn  from  the  transaction,  and  invite  parties  to 
repudiate  their  contract  obligations  whenever  they  can  gain 
thereby. 

There  can  be  no  legal  presumption  that  such  a  transaction  is 
a  voluntary  rescission  or  modification  of  the  original  contract, 
for  the  natural  inference  to  be  drawn  from  it  is  otherwise  in  the 
absence  of  any  equitable  considerations  justifying  the  demand 
for  extra  pay.  In  such  a  case  tne  obvious  inference  is  that  the 
party  so  refusing  to  perform  his  contract  is  seeking  to  take 
advantage  of  the  necessities  of  the  other  party  to  force  from 
him  a  promise  to  pay  a  further  sum  for  that  which  he  is  already 
legally  entitled  to  receive.  Surely  it  would  be  a  travesty  on 
justice  to  hold  that  the  party  so  making  the  promise  for  extra 
pay  was  estopped  from  asserting  that  the  promise  was  without 
consideration.  A  party  cannot  lay  the  foundation  of  an  estop- 
pel by  his  own  wrong.  If  it  be  conceded  that  by  the  new  prom- 
ise the  party  obtains  that  which  he  could  not  compel — viz.,  a 
specific  performance  of  the  contract  by  the  other  party — still 
the  fact  remains  that  the  one  party  has  obtained  thereby  only 
that  which  he  was  legally  entitled  to  receive,  and  the  other 
party  has  done  only  that  which  he  was  legally  bound  to  do. 
How,  then,  can  it  be  said  that  the  legal  rights  or  obligations  of 
the  party  are  changed  by  the  new  promise  ?     It  is  entirely  com- 


I 


SEC.  lul]       KING  V.  DULUTir,  MISSABE  &  N.  R.  R.  CO.  46/ 

petent  for  the  parties  to  a  contract  to  modify  or  to  waive  their 
riglits  under  it,  and  ingraft  new  terms  upon  it,  and  in  such  a 
case  the  promise  of  one  party  is  the  consideration  for  that  of 
the  other  ;  but  where  the  promise  to  the  one  is  simply  a  repeti- 
tion of  a  subsisting  legal  promise  there  can  be  no  consideration 
for  the  promise  of  the  other  party,  and  there  is  no  warrant  for 
inferring  that  the  parties  have  voluntarily  rescinded  or  modified 
their  contract. 

But  where  the  party  refusing  to  complete  his  contract  does 
so  by  reason  of  some  unforeseen  and  substantial  difficulties  in 
the  performance  of  the  contract,  which  were  not  known  or  an- 
ticipated by  the  parties  when  the  contract  was  entered  into,  and 
which  cast  upon  him  an  additional  burden  not  contemplated  by 
the  parties,  and  the  opposite  party  promises  him  extra  pay  or 
benefits  if  he  will  complete  his  contract,  and  he  so  promises, 
the  promise  to  pay  is  supported  by  a  valid  consideration.  In 
such  a  case  the  natural  inference  arising  from  the  transaction, 
if  unmodified  by  any  equitable  considerations,  is  rebutted,  and 
the  presumption  arises  that  by  the  voluntary  and  mutual  prom- 
ises of  the  parties  their  respective  rights  and  obligations  under 
the  original  contract  are  waived,  and  those  of  the  new  or  modi- 
fied contract  substituted  for  them.  Cases  of  this  character  form 
an  exception  to  the  general  rule  that  a  promise  to  do  that  which 
a  party  is  already  legally  bound  to  do  is  not  a  sufficient  consid- 
eration to  support  a  promise  by  the  other  party  to  the  contract 
to  give  the  former  an  additional  compensation  or  benefit. 
I  Whart.  Cont.  §  500. 

On  the  other  hand,  where  no  unforeseen  additional  burdens 
have  been  cast  upon  a  party  refusing  to  perform  his  contract, 
which  make  his  refusal  to  perform,  unless  promised  further 
pay,  equitable,  and  such  refusal  and  promise  of  extra  pay  are 
all  one  transaction,  the  promise  of  further  compensation  is 
without  consideration,  and  the  case  falls  within  the  general  rule, 
and  the  promise  cannot  be  legally  enforced,  although  the  other 
party  has  completed  his  contract  in  reliance  upon  it.  This 
proposition,  in  our  opinion,  is  correct  on  prinriple  and  sup- 
ported by  the  weight  of  authority. 

What  unforeseen  difficulties  and  burdens  will  make  a  party's 
refusal  to  go  forward  with  his  contract  equitable,  so  as  to  take 
the  case  out  of  the  general  rule  and  bring  it  within  the  excep- 
tion, must  depend  upon  the  facts  of  each  particular  case.  They 
must  be  substantial,  unforeseen,  and  not  within  the  contempla- 
tion of  the  parties  when  the  contract  was  made.  They  need 
not  be  such  as  would  legally  justify  the  party  in  his  refusal  to 
perform  his  contract,  unless  promised  extra  pay,  or  to  justify  a 


468  KING  V.  DULUTH,  MISSABE  &  N.  R.  R.  CO.        [CHAP.  I. 

court  of  equity  in  relieving  him  from  the  contract  ;  for  they 
are  sufficient  if  they  are  of  such  a  character  as  to  render  the 
party's  demand  for  extra  pay  manifestly  fair,  so  as  to  rebut  all 
inference  that  he  is  seeking  to  be  relieved  from  an  unsatisfac- 
tory contract,  or  to  take  advantage  of  the  necessities  of  the 
opposite  party  to  coerce  from  him  a  promise  for  further  com- 
pensation. Inadequacy  of  the  contract  price,  which  is  the  result 
of  an  error  of  judgment,  and  not  of  some  excusable  mistake  of 
fact,  is  not  sufficient. 

The  cases  of  Meech  v.  City  of  Buffalo,  29  N.  Y.  198,  vi^here 
the  unforeseen  difficulty  in  the  execution  of  the  contract  was 
quicksand,  in  place  of  expected  ordinary  earth  excavation,  and 
Michaud  v.  MacGregor,  supra,  p.  198,  6;^  N,  W.  479,  where  the 
unforeseen  obstacles  were  rocks  below  the  surface  of  the  lots  to 
be  excavated,  which  did  not  naturally  belong  there,  but  were 
placed  there  by  a  third  party,  and  of  the  existence  of  which 
both  parties  to  the  contract  were  ignorant  when  the  contract 
was  made,  are  illustrations  of  what  unforeseen  difficulties  will 
take  a  case  out  of  the  general  rule. 

Do  the  allegations  of  fact  contained  in  plaintiff's  first  alleged 
cause  of  action  bring  his  case  within  the  exception  ?  Clearly 
not  ;  for  eliminating  all  conclusions,  and  considering  only  the 
facts  alleged,  there  is  nothing  to  make  the  case  exceptional, 
other  than  the  general  statement  that  the  season  was  so  extraor- 
dinary that  in  order  to  do  the  stipulated  work  it  would  require 
great  and  unusual  expense,  involving  a  large  use  of  powder  and 
extra  time  and  labor  for  the  purpose  of  blasting  out  the  frozen 
earth  and  other  material  which  was  encountered.  What  the 
character  of  this  material  was  we  are  not  told,  or  what  the  other 
extraordinary  conditions  of  the  ground  were.  The  Court  will 
take  judicial  knowledge  of  the  fact  that  frozen  ground  on  the 
Missabe  Range,  where  the  work  was  to  be  performed,  in  the 
month  of  February,  is  not  unusual  or  extraordinary.  It  was  a 
matter  which  must  have  been  anticipated  by  the  parties,  and 
taken  into  consideration  by  them  when  this  contract  was  made. 
The  most  that  can  be  claimed  from  the  allegations  of  the  com- 
plaint is  that  the  contractors  had  made  a  losing  bargain,  and 
refused  to  complete  their  contract,  and  the  defendant,  by  its 
representative,  promised  them  that  if  they  would  go  forward 
and  complete  their  contract  it  would  pay  them  an  additional 
compensation,  so  that  the  total  compensation  should  be  equal 
to  the  actual  cost  of  the  work. 

2.  The  second  cause  of  action  is  supported  by  a  different  and 
a  valid  consideration.  It  fairly  appears  from  the  allegations  of 
tlie  complaint  as  to  this  cause  of  action  that  the  defendant,  by 


SEC.  11^/.]      SriADWELL  T'.  SIIADWELL  AND  ANOTHER.  469 

changing  its  line  and  by  its  defaults,  had  so  far  delayed  the 
work  of  construction  as  to  legally  excuse  the  contractors  from 
their  obligation  to  complete  the  work  within  the  time  originally 
agreed  upon,  and  that  to  execute  the  work  within  such  time 
would  involve  an  additional  expense.  Thereupon,  in  consider- 
ation of  their  waiving  the  defaults  and  the  delays  occasioned 
by  the  defendant,  and  promising  to  complete  the  work  in  time, 
so  that  it  could  secure  the  bonds,'  it  promised  to  pay  or  give  to 
them  the  extra  compensation.  This  was  a  legal  consideration 
for  such  promise,  and  the  allegations  of  the  second  general  sub- 
division of  the  complaint  state  a  cause  of  action. 

So  much  of  the  order  appealed  from  as  overruled  the  defend- 
ant's demurrer  to  the  supposed  first  cause  of  action  in  the 
plaintiff's  complaint  must  be  reversed,  and  as  to  so  mucli  of  it 
as  overruled  the  demurrer  to  the  second  cause  of  action  it  must 
be  affirmed,  and  the  case  remanded  to  the  District  Court  of  the 
county  of  St.  Louis  with  the  direction  to  modify  the  order  ap- 
pealed from  so  as  to  sustain  the  demurrer  as  to  the  first  cause 
of  action,  with  or  without  leave  to  the  plaintiff  to  amend,  as 
such  Court  may  deem  to  be  just. 

So  ordered. 


SHADWELL  v.  SHADWELL  and  Another,  Execu- 
tors,   ETC, 

In  THE  Common  Pleas,  November  26,  i860. 

{Reported  m  30  Lazu  Journal  Reports,  Common  Pleas  145.] 

The  declaration  stated  that  the  testator,  in  his  lifetime  (in 
consideration  that  the  plaintiff  would  marry  Ellen  Nicholl), 
agreed  with  and  promised  the  plaintiff,  who  was  then  unmar- 
ried, in  the  terms  contained  in  a  writing  in  the  form  of  a  letter, 
addressed  by  the  said  testator  to  the  plaintiff,  which  writing 
was  and  is  in  the  words,  letters,  and  figures  following — that  is 
to  say  : 

"  Gray's  Inn,  August  11,  1838. 
"  My  Dear  Lancey  :  I  am  glad  to  hear  of  your  intended 
marriage  with  Ellen  Nicholl  ;  and,  as  I  promised  to  assist  you 
at  starting,  I  am  happy  to  tell  you  that  I  will  pay  to  you  ^1^150 
yearly  during  my  life,  and  until  your  annual  income  derived 
from  your  profession  of  a  Chancery  barrister  shall  amount  to 

'  See  Grant  v.  Dulutli,  M.  &  N.  Ry.  Co.,  supra,  ])p.  396-97. 


470  SHADWELL  V.  SHADWELL  AND  ANOTHER.      [cHAP.  l, 

600  guineas,  of  which  your  own  admission  will  be  the  only  evi- 
dence that  I  shall  receive  or  require. 

"  Your  ever  affectionate  uncle, 

"  Charles  Shadwell." 

Averment  that  the  plaintiff  did  all  things  necessary,  and  all 
things  necessary  happened,  to  entitle  him  to  have  the  said 
testator  pay  to  him  eighteen  of  the  said  yearly  sums  of  ;!^i5o 
each  respectively,  and  that  the  time  for  the  payment  of  each  of 
the  said  eighteen  yearly  sums  elapsed  after  he  married  the  said 
Ellen  Nicholl,  and  in  the  lifetime  of  the  said  testator,  and  that 
the  plaintiff's  annual  income  derived  from  his  profession  of  a 
Chancery  barrister  never  amounted  to  600  guineas,  which  he 
was  always  ready  and  willing  to  admit  and  state  to  the  said 
testator,  and  the  said  testator  paid  to  the  plaintiff  twelve  of  the 
said  eighteen  yearly  sums  which  first  became  payable,  and  part, 
to  wit,  ;^i2  of  the  thirteenth  ;  yet  the  said  testator  made  de- 
fault in  paying  the  residue  of  the  said  thirteenth  yearly  sum, 
which  residue  is  still  in  arrear  and  unpaid,  and  in  paying  the 
five  of  the  said  eighteen  yearly  sums  which  last  became  payable, 
and  the  said  five  sums  are  still  in  arrear  and  unpaid. 

Fourth  plea,  that  before  and  at  the  time  of  the  making  of  the 
supposed  agreement  and  promise  in  the  declaration  mentioned, 
the  said  marriage  had  been  and  was  without  any  request  by  or 
on  the  part  of  the  testator  touching  the  said  intended  marriage, 
but  at  the  request  of  the  plaintiff,  intended  and  agreed  upon 
between  the  plaintiff  and  the  said  Ellen  Nicholl,  of  which  the 
testator  before  and  at  the  time  of  making  the  supposed  agree- 
ment and  promise  also  had  notice,  and  the  said  marriage  was 
after  the  making  of  the  supposed  agreement  and  promise  duly 
had  and  solemnized  as  in  the  declaration  mentioned,  at  the  re- 
quest of  the  plaintiff,  and  without  the  request  of  the  testator. 
And  the  defendants  further  say,  that  save  and  except  as  ex- 
pressed and  contained  in  the  writing  set  forth  in  the  declara- 
tion, there  never  was  any  consideration  for  the  supposed  agree- 
ment and  promise  in  the  declaration  mentioned,  or  for  the  per- 
formance thereof. 

Fifth  plea,  to  part  of  the  claim  of  the  plaintiff,  to  wit,  to  so 
much  thereof  as  accrued  due  in  and  after  the  year  1855,  the  de- 
fendants say  that  although  the  supposed  agreement  and  prom- 
ise in  the  declaration  mentioned  were  made  upon  the  terms  then 
agreed  on  by  the  plaintiff  and  the  testator,  that  the  plaintiff 
should  continue  in  practice  and  carry  on  the  profession  of  such 
Chancery  barrister  as  aforesaid,  and  should  not  abandon  the 
same  ;  yet  that  after  the   making  of   the  said   agreement  and 


SEC.  11^.]      SHADWELL  z;.  SHADWELL  AND  ANOTHER.  471 

promise,  and  before  the  accruing  of  the  supposed  causes  by  this 
plea  pleaded  to  and  in  the  declaration  mentioned,  or  any  part 
thereof,  the  plaintiff  voluntarily,  and  without  the  leave  or 
license  of  the  testator,  relinquished  and  gave  up  and  abandoned 
the  practice  of  the  said  profession  of  a  Chancery  barrister,  which 
before  and  at  the  time  of  the  said  making  of  the  said  supp.)sed 
agreement  and  promise,  he  had  so  carried  on  as  aforesaid  ;  and 
although  the  plaintiff  could  and  might,  during  the  time  in  this 
plea  and  in  the  declaration  mentioned,  have  continued  to  prac- 
tise and  carry  on  that  profession  as  aforesaid,  yet  the  plaintifif, 
after  such  abandonment  thereof,  never  was  ready  and  willing 
to  practise  the  same  as  aforesaid,  but  practised  only  as  a  revis- 
ing barrister — that  is  to  say,  as  a  barrister  appointed  yearly  to 
revise  the  list  of  voters  for  the  year,  for  the  coimty  of  Middle- 
sex, according  to  the  provisions  of  the  statutes  in  that  behalf, 
by  holding  open  courts  for  such  revision  at  the  times  and  places 
in  that  behalf  provided  by  the  said  statutes. 

Second  replication  to  the  fourth  plea,  that  the  said  agreement 
declared  on  was  made  in  writing,  signed  by  the  said  testator, 
and  was  and  is  in  the  words,  letters,  and  figures  following,  and 
in  none  other — that  is  to  say  [setting  out  the  letter  as  in  the 
declaration  above].  Averment  that  the  plaintiff  afterward  mar- 
ried the  said  Ellen  Nicholl,  relying  on  the  said  promise  of  the 
said  testator,  which  at  the  time  of  the  said  marriage  was  in  full 
force,  not  in  any  way  vacated  or  revoked,  and  that  he  so  mar- 
ried while  his  annual  income  derived  from  his  profession  of  a 
Chancery  barrister  did  not  amount,  and  was  not  by  him  ad- 
mitted to  amount,  to  600  guineas. 

Second  replication  to  the  fifth  plea,  that  the  said  agreement 
declared  on  was  in  writing,  signed  by  the  said  testator,  and  was 
and  is  in  the  words,  letters,  and  figures  set  out  in  the  next  pre- 
ceding replication,  and  in  none  other,  and  that  the  terms  upon 
which  it  is  in  the  fifth  plea  alleged  that  the  said  agreement  and 
promise  were  made  were  no  part  of  the  agreement  and  promise 
declared  on,  and  the  performance  of  them  by  the  plaintiff  was 
not  a  condition  precedent  to  the  plaintiff's  right  to  be  paid  the 
said  annuity.  Demurrers  to  the  replications  to  the  fourth  and. 
fifth  pleas.     Joinder  in  demurrer. 

Bullar  in  support  of  the  demurrers. 

V.  Harcourt  in  support  of  the  replication. 

Erle,  C.J.,  now  delivered  the  judgment  of  himself  and  Keat- 
ing, J.  The  question  raised  by  the  demurrer  to  the  replication 
to  the  fourth  plea  is,  whether  there  was  a  consideration  to  sup- 
port the  action  on  the  promise  to  pay  an  annuity  of  ^^150  per 
annum.      If    there    be   such   a   consideration    it   is   a   marriage  ; 


472  SHADWELL  V.   SHADWELL  AND  ANOTHER.      [cHAP,  I. 

therefore  the  promise  is  within  the  Statute  of  Frauds,  and  the 
consideration  must  appear  in  the  writing  containing  the  promise 
— that  is,  in  the  letter  of  August  nth,  1838 — and  in  the  sur- 
rounding circumstances  to  be  gathered  therefrom,  together  with 
the  averments  on  the  record.  The  circumstances  are  that  the 
plaintiff  had  made  an  engagement  to  marry  Ellen  Nicholl,  his 
uncle  promising  him  to  assist  him  at  starting,  by  which,  as  I 
understand  the  words,  he  meant  on  commencing  his  married 
life.  Then  the  letter  containing  the  promise  declared  on  is 
said  to  specify  what  the  assistance  would  be — namely,  ^150  per 
annum  during  the  uncle's  life,  and  until  the  plaintiff's  profes- 
sional income  should  be  acknowledged  by  him  to  exceed  600 
guineas  ;  and  a  further  averment,  that  the  plaintiff,  relying 
upon  his  promise,  without  any  revocation  on  the  part  of  the 
uncle,  did  marry  Ellen  Nicholl.  Theft,  do  these  facts  show  that 
the  promise  was  in  consideration,  either  of  the  loss  to  be  sus- 
tained by  the  plaintiff,  or  the  benefit  to  be  derived  from  the 
plaintiff  to  the  uncle  at  his,  the  uncle's  request  ?  My  answer 
is  in  the  affirmative.  First,  do  these  facts  show  a  loss  sus- 
tained by  the  plaintiff  at  the  uncle's  request?  When  I  an- 
swer this  in  the  affirmative,  I  am  aware  that  a  man's  marriage 
wuth  the  woman  of  his  choice  is  in  one  sense  a  boon,  and  in  that 
sense  the  reverse  of  a  loss  ;  yet,  as  between  the  plaintiff  and 
the  party  promising  an  income  to  support  the  marriage,  it  may 
be  a  loss.  The  plaintiff  may  have  made  the  most  material 
changes  in  his  position,  and  have  induced  the  object  of  his  affec- 
tions to  do  the  same,  and  have  incurred  pecuniary  liabilities 
resulting  in  embarrassments,  which  would  be  in  every  sense  a 
loss  if  the  income  which  had  been  promised  should  be  withheld  ; 
and  if  the  promise  was  made  in  order  to  induce  the  parties  to 
marry,  the  promise  so  made  would  be,  in  legal  effect,  a  request 
to  marry.  Secondly,  do  these  facts  show  a  benefit  derived  from 
the  plaintiff  to  the  uncle  at  his  request  ?  In  answering  again  in 
the  affirmative,  I  am  at  liberty  to  consider  the  relation  in  which 
the  parties  stood,  and  the  interest  in  the  stattis  of  the  nephew 
which  the  uncle  declares.  The  marriage  primarily  affects  the 
parties  thereto  ;  but  in  the  second  degree  it  may  be  an  object 
of  interest  with  a  near  relative,  and  in  that  sense  a  benefit  to 
him.  This  benefit  is  also  derived  from  the  plaintiff  at  the 
uncle's  request,  if  the  promise  of  the  annuity  was  intended  as 
an  inducement  to  the  marriage  ;  and  the  averment  that  the 
plaintiff,  relying  on  the  promise,  married,  is  an  averment  that 
the  promise  was  one  inducement  to  the  marriage.  This  is  a 
consideration  averred  in  the  declaration,  and  it  appears  to  me 
to  be  expressed  in  the  letter,  construed  with  the  surrounding 


SEC.   Ik/.J     SHADWELL  V.  SIIAD\VELL  AND  ANOTHER.  473 

circumstances.  No  case  bearing  a  strong  analogy  to  the  pres- 
ent was  cited,  but  the  importance  of  enforcing  promises  wliich 
have  been  made  to  induce  parties  to  marry  has  been  often  rec- 
ognized, and  the  cases  of  Montefiori  v.  Montefiori  and  Bold  v. 
Hutchinson  are  examples.  I  do  not  feel  it  necessary  to  add 
anything  about  the  numerous  authorities  referred  to  in  the 
learned  arguments  addressed  to  us,  because  the  decision  turns 
on  a  question  of  fact,  whether  the  consideration  for  the  promise 
is  proved  as  pleaded.  I  think  it  is,  and  therefore  my  judgment 
on  the  first  demurrer  is  for  the  plaintiff.  The  second  demurrer 
raises  the  question,  whether  the  plaintiff's  continuing  at  the  bar 
was  made  a  condition  precedent  to  the  right  to  the  annuity. 
I  think  not.  The  uncle  promises  to  continue  the  annuity  until 
the  professional  income  exceeds  the  sum  mentioned,  and  I  find 
no  stipulation  that  the  annuity  shall  cease  if  the  professional 
diligence  ceases.  My  judgment  on  this  demurrer  is  also  for  the 
plaintilT,  and  I  should  state  that  this  is  the  judgment  of  my 
Brother  Keating  and  myself,  my  Brother  Byles  differing  with  us. 
Byles,  J.  I  am  of  opinion  that  the  defendant  is  entitled  to 
the  judgment  of  the  Court  on  the  demurrer  to  the  second  repli- 
cation to  the  fourth  plea.  It  is  alleged  by  the  fourth  plea  that 
the  defendant's  testator  never  requested  the  plaintiff  to  enter 
into  the  engagement  to  marry,  or  to  marry,  and  that  there  never 
was  any  consideration  for  the  testator's  promise,  except  what 
may  be  collected  from  the  letter  itself  set  out  in  the  declaration. 
The  inquiry,  therefore,  narrows  itself  to  this  question,  Does  the 
letter  itself  disclose  any  consideration  for  the  promise  ?  The 
consideration  relied  on  by  the  plaintiff's  counsel  being  the  sub- 
sequent marriage  of  the  plaintiff,  I  think  the  letter  discloses  no 
consideration.  It  is  in  these  words  [his  Lordship  read  it].  It 
is  by  no  means  clear  that  the  words  "  at  starting"  mean  "  on 
marriage  with  Ellen  Nicholl,"  or  with  any  one  else.  The  more 
natural  meaning  seems  to  me  to  be  "  at  starting  in  the  profes- 
sion," for  it  will  be  observed  that  these  words  are  used  by  the 
testator  in  reciting  a  prior  promise,  made  when  the  testator  had 
not  heard  of  the  proposed  marriage  with  Ellen  Nicholl,  or,  so 
far  as  appears,  heard  of  any  proposed  marriage.  This  construc- 
tion is  fortified  by  the  consideration  that  the  annuity  is  not,  in 
terms,  made  to  begin  from  the  marriage,  but,  as  it  should  seem, 
from  the  date  of  the  letter.  Neither  is  it  in  terms  made  defeasi- 
ble if  Ellen  Nicholl  should  die  before  marriage.  But  even  on 
the  assumption  that  the  words  "  at  starting"  mean  "  on'  mar- 
riage," I  still  think  that  no  consideration  appears  sufficient  to 
sustain  the  promise.  The  promise  is  one  which,  by  law,  must 
be  in  writing  ;  and  the  fourth  plea   shows  that  no  consideration 


474  SlIADWELL  V.  SHADWELL  AND  ANOTHER.       [cHAP.  i. 

or  request,  de/iors  the  letter,  existed,  and,  therefore,  that  no  such 
consideration  or  request  can  be  alluded  to  by  the  letter.  Mar- 
riage of  the  plaintiff  at  the  testator's  express  request  would  be, 
no  doubt,  an  ample  consideration,  but  marriage  of  the  plaintiff 
without  the  testator's  request  is  no  consideration  to  the  testator. 
It  is  true  that  marriage  is,  or  may  be  a  detriment  to  the  plain- 
tiff ;  but  detriment  to  the  plaintiff  is  not  enough,  unless  it  either 
be  a  benefit  to  the  testator  or  be  treated  by  the  testator  as  such, 
by  having  been  suffered  at  his  request.  Suppose  a  defendant 
to  promise  a  plaintiff,  "  I  will  give  you  ^500  if  you  break  youi 
leg,"  would  that  detriment  to  the  plaintiff,  should  it  happen, 
be  any  consideration  ?  If  it  be  said  that  such  an  accident  is  an 
involuntary  mischief,  would  it  have  been  a  binding  promise  if 
the  testator  had  said,  "  I  will  give  you  ;^ioo  a  year  while  you 
continue  in  your  present  chambers"?  I  conceive  that  the 
promise  would  not  be  binding  for  want  of  a  previous  request 
by  the  testator.  Now,  the  testator  in  the  case  before  the  Court 
derived,  so  far  as  appears,  no  personal  benefit  from  the  mar- 
riage. The  question,  therefore,  is  still  further  narrowed  to  this 
point,  Was  the  marriage  at  the  testator's  request  ?  Express  re- 
quest there  was  none.  Can  any  request  be  implied  ?  The  only 
words  from  which  it  can  be  contended  that  it  is  to  be  implied 
are  the  words,  "  I  am  glad  to  hear  of  your  intended  marriage 
with  Ellen  Nicholl."  But  it  appears  from  the  fourth  plea  that 
that  marriage  had  already  been  agreed  on,  and  that  the  testator 
knew  it.  These  words,  therefore,  seem  to  me  to  import  no 
more  than  the  satisfaction  of  the  testator  at  the  engagement  as 
an  accomplished  fact.  No  request  can,  as  it  seems  to  me,  be 
inferred  from  them.  And,  further,  how  does  it  appear  that  the 
testator's  implied  request,  if  it  could  be  implied,  or  his  prom- 
ise, if  that  promise  alone  would  suffice,  or  both  together,  were 
intended  to  cause  the  marriage,  or  did  cause  it,  so  that  the  mar- 
riage can  be  said  to  have  taken  place  at  the  testator's  request, 
or,  in  other  words,  in  consequence  of  that  request  ?  It  seems 
to  me,  not  only  that  this  does  not  appear,  but  that  the  contrary 
appears  ;  for  the  plaintiff  before  the  letter  had  already  bound 
himself  to  marry  by  placing  himself  not  only  under  a  moral, 
but  under  a  legal  obligation  to  marry,  and  the  testator  knew  it. 
The  well-known  cases  which  have  been  cited  at  the  bar  in  sup- 
port of  the  position  that  a  promise,  based  on  the  consideration 
of  doing  that  which  a  man  is  already  bound  to  do,  is  invalid, 
appl5^  to  this  case  ;  and  it  is  not  necessary,  in  order  to  invalidate 
the  consideration,  that  the  plaintiff's  prior  obligation  to  afford 
that  consideration  should  have  been  an  obligation  to  the  de- 
fendant.    It  may  have  been  an  obligation   to  a  third  person. 


SEC.   n^.]  SCOTSON    AND    OTHERS   X'.    I'ECG.  475 

See  Herring  e-.  Dorell'  and  Atkinson  v.  Settree/  The  reason 
why  tlie  doing  wliat  a  man  is  already  bound  to  do  is  no  consid- 
eration, is  not  only  because  such  a  consideration  is  in  judgment 
of  law  of  no  value,  but  because  a  man  can  hardly  be  allowed  to 
say  that  the  prior  legal  obligation  was  not  his  determining 
motive.  But  whether  he  can  be  allowed  to  say  so  or  not,  the 
plaintiff  does  not  say  so  here.  He  does,  indeed,  make  an 
attempt  to  meet  this  difficulty  by  alleging,  in  the  replication  to 
the  fourth  plea,  that  he  married  relying  on  the  testator's  prom- 
ise ;  but  he  shrinks  from  alleging  that  though  he  had  promised 
to  marry  before  the  testator's  promise  to  him,  nevertheless,  he 
would  have  broken  his  engagement,  and  would  not  have  mar- 
ried without  the  testator's  promise.  A  man  may  rely  on  en- 
couragements to  the  performance  of  his  duty  who  yet  is  prepared 
to  do  his  duty  without  those  encouragements.  At  the  utmost, 
the  allegation  that  he  relied  on  the  testator's  promise  seems  to 
me  to  import  no  more  than  that  he  believed  the  testator  would 
be  as  good  as  his  word.  It  appears  to  me,  for  these  reasons, 
that  this  letter  is  no  more  than  a  letter  of  kindness,  creating  no 
legal  obligation.  In  their  judgment  on  the  other  portions  of 
the  record  I  agree  with  the  rest  of  the  Court. 
Judgment  for  the  plaintiff. 


SCOTSON  AND  Others  v.   PEGG. 

In  the  Exchequer,  January  28,  1861. 

^Reported  in  6  Hurlstone  &^  Norman  295. J 

Declaration.  For  that  in  consideration  that  the  plaintiffs, 
at  the  request  of  the  defendant,  would  deliver  to  the  defendant 
a  certain  cargo  of  coals,  then  on  board  a  certain  ship  of  the 
plaintiffs,  the  defendant  to  take  the  same  from  and  out  of  the 
said  ship,  the  defendant  promised  the  plaintiffs  to  unload  and 
discharge  the  same  at  the  rate  of  49  tons  of  the  said  coals  dur- 
ing each  working  day,  after  the  said  ship  was  ready  to  unload 
and  discharge  the  same.  And  although  the  plaintiffs  did  after- 
ward deliver  the  said  cargo  to  the  defendant,  and  were  always 
ready  and  willing  to  suffer  and  permit  him  to  take  the  same 
from  and  out  of  the  said  ship  as  aforesaid,  and  although  all 
things  were  done,  and  conditions  precedent  to  be  performed  by 
the  plaintiffs  were  performed  by  the  plaintiffs,  to  entitle  the 

1  8  Dowl.  P.  C.  604.  »  Willes,  482. 


476  SCOTSON   AND    OTHERS   V.    PEGG.  [CHAP.  I. 

plaintiffs  to  a  performance  of  the  said  promise  by  the  defend- 
ant. Yet  the  defendant  did  not  unload  and  discharge  the  said 
cargo  at  the  rate  aforesaid  during  each  working  day  after  the 
said  ship  was  ready  to  unload  and  discharge  the  same,  and  the 
defendant  wholly  neglected  and  refused  so  to  do  for  five  days 
longer  and  more  than  he  ought  to  have  done  according  to  his 
said  promise  ;  and  the  plaintiffs  were  put  to  expense  in  and 
about  the  maintaining  and  keeping  the  master  and  crew  of 
the  said  ship,  etc. 

Plea.  That  before  the  making  of  the  said  promise  the  plain- 
tiffs, by  another  contract  made  by  and  between  the  plaintiffs 
and  certain  otiier  persons,  agreed  with  the  said  certain  other 
persons,  for  certain  freight  therefore  payable  by  the  said  other 
persons  to  the  plaintiffs,  to  carry  the  said  coals  on  a  certain 
voyage  in  the  said  ship,  and  to  deliver  the  said  coals  to  the 
order  of  the  said  other  persons,  which  contract  was  in  full  force 
thence,  until,  and  at  the  time  of  the  making  of  the  said  promise 
and  the  delivery  of  the  said  coals.  And  the  defendant  says  that 
before  the  making  of  the  said  promise,  and  after  the  making 
the  said  other  contract,  and  while  the  last-mentioned  contract 
was  in  force,  he  bought  the  coals  of  the  said  other  persons,  who 
thereupon  ordered  the  plaintiffs  to  deliver  the  same  to  the  de- 
fendant, under  and  according  to  the  said  contract  with  the  said 
other  persons,  of  which  the  plaintiffs  before  the  making  of  the 
said  promise  had  notice.  And  the  defendant  says  that  the  said 
order  was  in  full  force  until  and  at  the  time  of  the  making  of 
the  said  promise,  and  thence  until  and  at  the  delivery  of  the 
said  coals,  of  which  the  plaintiffs  always  had  notice.  And  the 
defendant  says  the  then  future  delivery  to  the  defendant  of  the 
said  coals  on  the  terms  in  the  declaration  mentioned,  which  was 
the  consideration  for  the  said  promise,  was  the  delivery  of  the 
said  coals  to  the  order  of  the  said  other  persons,  which  the 
plaintiffs  had  by  the  said  contract  with  such  other  persons  so 
agreed  to  make  as  aforesaid,  and  which  before  and  at  the  time 
of  the  making  of  the  said  promise,  until  and  at  the  time  of  the 
said  delivery,  the  plaintiffs  were,  by,  under,  and  according  to 
the  said  contract  with  the  said  other  persons  bound  to  make  as 
aforesaid.  And  the  defendant  says  that  there  never  was  any 
consideration  for  his  said  promise  other  than  the  doing  of  that 
which  by  the  said  contract  with  the  said  other  persons  they  the 
plaintiffs,  before  and  at  the  time  of  the  making  of  the  said 
promise,  and  thence  until  the  plaintiffs  did  it  were  bound  to  do. 

Demurrer  and  joinder  therein. 

Dowdeswell  in  support  of  the  demurrer.  The  plea  is  bad.  It 
admits  a  promise  by  the  defendant   to  unload  the  coal  at  the 


SEC.  11^.]  SCOTSOX    AND    OTHERS    Z'.    I'EGG.  477 

rate  of  49  tons  a  day  ;  and  the  delivery  of  the  same  by  ilie 
plaintiffs  is  a  sufficient  consideration  to  support  the  promise. 
The  defendant,  having  made  an  express  promise,  is  not  relieved 
from  his  obligation  to  perform  it  because  the  plaintiff  has  en- 
tered into  a  previous  contract  with  another  person  to  deliver  to 
his  order.  The  defence  would  be  available  under  the  general 
issue  ;  but  the  plea  was  allowed  on  the  authority  of  Shadvvell  v. 
Shad  well,  C.  B.,  M.  T.  i860.  This  is  an  attempt  to  question 
the  decisions  on  this  subject,  which  have  been  uniform  from 
the  time  of  Jesson  7>.  Solly,  4  Taunt.  52. 

The  Court  then  called  on 

C.  Pollock  to  support  the  plea.  There  is  no  consideration  to 
support  the  promise.  The  plea  shows  that  the  consideration 
alleged  in  the  declaration  is  the  doing  that  which  the  plaintiffs, 
by  their  contract  with  other  persons,  were  bound  to  do.  The 
charter  party  only  specifies  the  time  and  mode  in  which  the 
cargo  is  to  be  discharged,  as  between  the  charterer  and  ship- 
owner. [Martin,  B.  You  must  establish  this,  that  if  a  person 
says  to  another,  "  The  goods  which  I  have  in  my  ship  are  yours, 
but  I  will  not  deliver  them  unless  you  pay  my  lien  for  freight," 
which  the  latter  agrees  to  do,  the  delivery  of  the  goods  is  no 
consideration  to  support  the  promise  to  pay.]  The  cargo  is  the 
property  of  the  defendant,  and  the  agreement  to  deliver  to  him 
that  which  he  was  entitled  to  have  was  a  nudum  pactufn.  In 
Black.  Com.,  Vol.  II.,  p.  450,  it  is  said  :  "  If  a  man  buys  his 
own  goods  in  a  fair  or  market,  the  contract  of  sale  shall  not 
bind  him,  so  that  he  shall  render  the  price,  unless  the  property 
had  been  previously  altered  by  a  former  sale."  [Wilde,  B. 
That  is  the  case  of  a  purchase  of  goods,  the  property  in  them 
being  already  in  the  purchaser,  but  here  the  plaintiffs  will  not 
deliver  the  cargo  to  the  defendant,  whereupon  the  defendant 
says,  "  If  you  will  deliver  it  to  me,  I  will  discharge  it  in  a  cer- 
tain manner."]  The  plaintiffs  were  under  a  prior  legal  obliga- 
tion to  deliver  the  cargo,  and  therefore  the  promise  to  the  de- 
fendant to  do  the  same  thing  was  void.  Where  a  plaintiff  dis- 
charged one  of  two  joint  debtors,  it  was  held  that  a  promise  by 
a  third  person  to  pay  the  debt,  in  order  to  obtain  the  discharge 
of  the  other  debtor,  was  void  for  want  of  consideration.  Herr- 
ing V.  Dorell,  8  Dowl.  P.  C.  604.  So  if  A.  be  illegally  arrested 
by  B.  for  debt,  a  promise  by  C.  to  pay  the  debt  claimed  by  B., 
in  consideration  of  B.'s  releasing  A.  out  of  custody,  is  void. 
Atkinson  v.  Settree,  Willes,  482.  [Wilde,  B.  In  those  cases 
there  was  a  legal  right  to  the  performance  of  the  very  act  which 
was  bargained  for  ;  it  is  not  so  here.  Martin,  B.  Suppose  a 
man  promised  to  marry  on  a  certain  day,  and  before  that  da3' 


478  SCOTSON   AND    OTHERS    V.    PEGG.  [cHAP.  I. 

arrived  he  refused,  on  the  ground  that  his  income  was  not  suffi- 
cient, whereupon  the  father  of  the  intended  wife  said  to  him  : 
"  If  you  will  marry  my  daughter,  I  will  allow  you  ;!^iooo  a 
year."  Could  not  that  contract  be  enforced?]  There  would 
be  no  consideration  for  such  a  promise,  the  party  being  already 
under  an  obligation  to  marry.  A  promise  by  a  captain  to  pay 
his  sailors  increased  wages  for  performing  their  duty  during  a 
storm  is  void  for  want  of  consideration.  [Martin,  B.  That 
proceeds  on  the  ground  of  public  policy.  Wilde,  B.  It  often 
happens  that  when  goods  arrive  in  a  ship,  and  there  is  a  lien 
upon  them,  a  merchant  who  wants  to  get  possession  of  the 
goods  promises  to  pay  the  lien  if  the  master  will  deliver  them 
to  him.  A  man  may  be  bound  by  his  contract  to  do  a  particu- 
lar thing,  but  while  it  is  doubtful  whether  or  no  he  will  do  it, 
if  a  third  person  steps  in  and  says,  "  1  will  pay  you  if  you  will 
do  it,"  the  performance  is  a  valid  consideration  for  the  pay- 
ment. Martin,  B.  If  a  builder  was  under  a  contract  to  finish 
a  house  on  a  particular  day,  and  the  owner  promised  to  pay 
him  a  sum  of  money  if  he  would  do  it,  what  is  to  prevent  the 
builder  from  recovering  the  money  ?]  As  the  plaintiffs  would 
be  doing  a  wrong  by  not  fulfilling  their  contract,  it  must  be 
presumed  that  the  prior  legal  obligation,  and  not  the  subse- 
quent promise,  was  the  motive  for  their  delivery  of  the  cargo. 

Martin,  B.  I  am  of  opinion  that  the  plea  is  bad,  both  on 
principle  and  in  law.  It  is  bad  in  law  because  the  ordinary  rule 
is,  that  any  act  done  whereby  the  contracting  party  receives  a 
benefit  is  a  good  consideration  for  a  promise  by  him.  Here  the 
benefit  is  the  delivery  of  the  coals  to  the  defendant.  It  is  con- 
sistent with  the  declaration  that  there  may  have  been  some  dis- 
pute as  to  the  defendant's  right  to  have  the  coals,  or  it  may  be 
that  the  plaintiffs  detained  them  for  demurrage  ;  in  either  case 
there  would  be  good  consideration  that  the  plaintiffs,  who  were 
in  possession  of  the  coals,  would  allow  the  defendant  to  take 
them  out  of  the  ship.  Then  is  it  any  answer  that  the  plaintiffs 
had  entered  into  a  prior  contract  with  other  persons  to  deliver 
the  coals  to  their  order  upon  the  same  terms,  and  that  the  de- 
fendant was  a  stranger  to  that  contract  ?  In  my  opinion  it  is 
not.  We  must  deal  with  this  case  as  if  no  prior  contract  had 
been  entered  into.  Suppose  the  plaintiffs  had  no  chance  of 
getting  their  money  from  the  other  persons,  who  might  perhaps 
have  become  bankrupt.  The  defendant  gets  a  benefit  by  the 
delivery  of  the  coals  to  him,  and  it  is  immaterial  that  the  plain- 
tiffs had  previously  contracted  with  third  parties  to  deliver  to 
their  order. 

Wilde,  B.      I   am   also   of  opinion   that   the  plaintiffs  are  en- 


SEC.  lu/.]  MERRICK   AND    DURAXT   Z\    GIDDINGS.  479 

titled  to  judgment.  The  pkiintiffs  say,  that  in  consideration 
that  they  would  deliver  to  the  defendant  a  cargo  of  coals  from 
their  ship,  the  defendant  promised  to  discharge  the  cargo  in  a 
certain  way.  The  defendant,  in  ansvver,  says  :  "  You  made  a 
previous  contract  with  other  persons  that  they  should  discharge 
the  cargo  in  the  same  way,  and  therefore  there  is  no  considera- 
tion for  my  promise."  But  why  is  there  no  consideration  ?  It 
is  said,  because  the  plaintiffs,  in  delivering  the  coals,  are  only 
performing  that  which  they  were  already  bound  to  do.  But  to 
say  that  there  is  no  consideration  is  to  say  that  it  is  not  possible 
for  one  man  to  have  an  interest  in  the  performance  of  a  contract 
made  by  another.  But  if  a  person  chooses  to  promise  to  pay  a 
sum  of  money  in  order  to  induce  another  to  perform  that  which 
he  has  already  contracted  with  a  third  person  to  do,  I  confess 
I  cannot  see  why  such  a  promise  should  not  be  binding.  Mere 
the  defendant,  who  was  a  stranger  to  the  original  contract,  in- 
duced the  plaintiffs  to  part  witli  the  cargo,  which  they  might 
not  otherwise  have  been  willing  to  do,  and  the  delivery  of  it  to 
the  defendant  was  a  benefit  to  him.  I  accede  to  the  proposition 
that,  if  a  person  contracts  with  another  to  do  a  certain  thing, 
he  cannot  make  the  performance  of  it  a  consideration  for  a  new 
promise  to  the  same  individual.  But  there  is  no  authority  for 
the  proposition  that  where  there  has  been  a  promise  to  one  per- 
son to  do  a  certain  thing,  it  is  not  possible  to  make  a  valid 
promise  to  another  to  do  the  same  thing.  Therefore,  deciding 
this  matter  on  principle,  it  is  plain  to  my  mind  that  the  delivery 
of  the  coals  to  the  defendant  was  a  good  consideration  for  his 
promise,  although  the  plaintiffs  had  made  a  previous  contract 
to  deliver  them  to  the  order  of  other  persons. 
Judgment  for  the  plaintiffs.' 


RICHARD    T.  MERRICK    and    THOMAS   J.  DURANT   v. 
DE    WITT    C.  GIDDINGS. 

In  the  Supreme  Court  of  the  District  of  Columbia, 
January  18,  1882. 

\_Reported  in  i  Mac  key  394.] 

The  case  is  stated  in  the  opinion. 
John  Seldeti  for  plaintiffs. 

F.  P.  Cuppy  and  James  Coleman  for  defendant. 
James,  J.,  delivered  the  opinion  of  the  Court, 
The  declaration  in  this  case  alleges,   substantially,  that  the 
*  Pollock.  C.B.,  and  Channell,  B.,  were  absent. 


480  MERRICK   AND    DURANT   V.    GIDDINGS.  [CHAP.  I. 

plaintiffs  were  retained  by  the  State  to  aid  by  certain  legal  pro- 
ceedino-s,  mainly  before  the  Supreme  Court  of  the  United 
States,  in  the  recovery  of  certain  bonds,  or  the  proceeds  thereof, 
in  the  possession  of  certain  persons  without  right,  and  belong- 
ing to  said  State,  upon  a  contingent  compensation  of  20  per 
centum  of  the  amount  of  such  of  the  said  bonds  or  proceeds  as 
might,  by  means  of  such  aid,  be  in  any  way  recovered  by  said 
State  ;  that  while  plaintiffs  were  acting  under  that  retainer  and 
conducting  those  proceedings,  the  defendant,  with  plaintiffs' 
consent,  was  retained  by  said  State  as  her  other  and  further 
attorney  and  counsel,  but  upon  a  separate  and  additional  com- 
pensation to  be  paid  him,  to  aid  in  the  recovery  and  collection 
of  said  bonds  or  proceeds  ;  that  afterward,  and  while  plaintiffs 
and  defendant  were  respectively  so  employed,  the  defendant, 
with  the  consent  of  said  State,  and  in  consideration  that  plain- 
tiffs would,  by  means  of  their  legal  proceedings,  cause  the  title 
of  said  State  to  said  bonds  to  be  therein  adjudged  and  decreed  ; 
but  would,  with  the  consent  of  the  State,  refrain  from  any  at- 
tempt to  reduce  them  into  possession,  and  suffered  the  de- 
fendant, with  like  consent,  to  reduce  them  into  possession  for 
said  State,  agreed  with  plaintiffs  that  he  would  retain  for  their 
sole  use,  and  pay  over  to  them,  out  of  any  of  the  said  bonds  or 
proceeds  thereafter  collected  or  recovered  by  him,  as  such  other 
attorney,  into  his  actual  possession,  20  per  centum  thereof  ;  that 
plaintiffs,  with  the  consent  of  the  State,  and  by  means  of  their 
proceedings  before  the  Supreme  Court,  did  procure  the  title  of 
the  State  to  be  adjudged  as  required,  and  did  refrain  as  agreed, 
and  did,  with  like  consent,  permit  defendant  alone,  as  such 
other  attorney,  to  reduce  said  bonds  into  actual  possession  for 
the  State  ;  and  defendant  did,  by  means  of  the  adjudication 
procured  by  plaintiffs,  and  by  force  of  such  refraining  and  dos- 
session  of  the  plaintiffs,  recover  into  his  actual  possession  for 
the  said  State  proceeds  of  said  bonds  to  the  amount  of  $339,- 
240.12,  but  did  not  retain  for  the  use  of  or  pay  over  to  the 
plaintiffs  20  per  centum,  or  any  part^of  such  proceeds,  to  the 
damage  of  plaintiffs  in  the  sum  of  $70,000.  To  this  are  added 
the  common  counts  for  money  payable  by  defendant  to  plain- 
tiffs, and  money  received  by  defendant  for  the  use  of  plaintiffs. 
For  the  sake  of  more  intelligible  brevity,  it  may  be  repeated 
that  the  cause  of  action  set  forth  in  the  special  count  is  a  breach 
of  defendant's  promise  to  retain  and  pay  over  to  plaintiffs,  out 
of  moneys  which  should  be,  and  which  actually  were  collected 
by  him,  the  fee  which  the  State  of  Texas  had  agreed  to  pay 
them  ;  the  consideration  for  this  promise  being  the  performance 
of  certain  services  by  them,  and  their  forbearance  to  perform 


SEC.  nd.]  MERRICK   AND   DURANT   7'.    GIDDINGS.  481 

themselves,  and  their  suffering  defendant  to  perform  certain 
other  services. 

Four  bills  of  exception  were  signed  at  the  trial,  but  all  of 
them  are,  in  proper  form,  made  part  of  the  last  one,  and  the 
hearing  in  tliis  Court  has  been  upon  the  latter  only.  It  shows 
that  "  after  the  evidence  had  been  given,  as  set  forth  in  the 
foregoing  bills  of  exception,  .  .  .  the  plaintiffs  announced  that 
they  rested  their  case.  Thereupon  the  defendant  prayed  the 
Court  to  instruct  the  jury  that  upon  the  whole  evidence  their 
verdict  should  be  for  the  defendant."  The  bill  further  sets 
forth  certain  reasons  on  which  the  Court  based  its  conclusions, 
and  then  adds  :  "  And  the  Court,  therefore,  gave  to  the  jury 
the  instruction  prayed,  and  the  jury,  under  instruction,  returned 
a  verdict  for  the  defendant." 

It  is  not  stated  in  terms  that  the  bills  of  exception  contain  the 
"  whole"  of  the  evidence  admitted  at  the  trial  ;  but  a  statement 
that  the  plaintiffs  rested  their  case  "  after  the  evidence  had 
been  given  as  set  forth  in  the  foregoing  bills"  may  be  accepted 
as  equivalent.  Besides,  a  presumption  that  other  evidence  was 
given  by  the  plaintiffs  would  be  a  presumption  against  the  de- 
cision of  the  Court  ;  in  other  words,  that  error  had  been  com- 
mitted ;  and  this  is  not  admissible.  The  bills  of  exception  de- 
scribe the  evidence,  of  course,  only  as  "  tending  to  show  ;"  but 
the  instruction  to  the  jury  answers  the  same  purpose  as  a  de- 
murrer to  evidence,  and  should  be  tested  by  the  same  rule. 
"  A  demurrer  to  evidence  admits  not  only  the  facts  stated 
therein,  but  also  every  conclusion  which  a  jury  might  fairly  and 
reasonably  infer  therefrom."  Parks  z/.  Ross,  11  How.  362  (373)  ; 
Richardson  ?'.  The  City  of  Boston,  19  How.  263  (268).  In 
accordance  with  this  rule  we  have  to  state  the  facts  established 
at  the  trial.' 

It  is  claimed  by  the  plaintiffs  that  upon  this  evidence — which 
we  have  stated  as  facts  only  on  the  theory  of  a  demurrer  to  evi- 
dence— two  contracts  are  established — namely,  first,  a  contract 
made  by  the  defendant  directly  with  the  plaintiffs  to  retain  and 
pay  over  to  them  the  compensation  for  which  they  stipulated 
with  the  State  ;  and,  second,  a  contract  made  by  the  defendant 
in  terms  with  the  State,  but  for  the  benefit  of  the  plaintiffs  ; 
and  that  the  first  of  these  is  set  up  in  the  special  count,  but 
that  a  recovery  may  be  had  upon  either  of  them  under  the  com- 
mon count  alone,  on  the  ground  that  both  have  been  completely 
executed  on  the  part  of  the  plaintiffs. 

The  theory  of  the  first  of  these  contracts,  insisted  upon  by 
the  plaintiffs,  is,  that  the  evidence  has  established  the  following 
'  The  discussion  of  the  evidence  has  been  omitted. — Ed. 


482  MERRICK   AND   DURANT   V.    GIDDINGS.         [CHAP.  I. 

facts  :  First,  an  actual  promise,  made  by  the  defendant  some 
time  in  the  year  1875,  that  he  would  retain  and  pay  over  to  the 
plaintiffs  the  compensation  for  which  they  had  stipulated  with 
the  State  ;  second,  that  the  services  rendered  by  the  plaintiffs 
in  the  proceeding  against  Chiles  were  the  consideration  by 
which  this  promise  was  supported,  and  that  these  services  were 
a  sufficient  consideration,  because  they  constituted  a  benefit 
conferred  by  the  plaintiffs  on  the  defendant  at  the  defendant's 
request  ;'  and  third,  that  the  promise  was  made  with  the  con- 
sent of  the  State  of  Texas,  to  which  the  moneys  so  to  be  held 
and  paid  over  belonged. 

It  is  next  insisted  that  the  services  rendered  by  the  plaintiffs 
in  the  proceeding  against  Chiles  constituted  a  benefit  conferred 
by  the  plaintiffs  upon  defendant  at  his  request,  and,  therefore, 
furnished  a  consideration  which  supports  the  subsequent 
promise. 

A  somewhat  curious  and  important  question  here  presents 
itself,  which  does  not  appear  to  have  been  well  settled  yet.  If 
these  services  were  in  fact  the  very  services  which  the  plaintiffs 
were  already  bound  to  perform  by  virtue  of  a  subsisting  con- 
tract with  the  State  of  Texas,  were  they  capable  of  serving  as 
the  consideration  for  any  promise  by  the  defendant,  notwilh 
standing  they  might  result,  and  did  result,  in  a  benefit  to  him  ' 
VVe  have  examined  several  cases  bearing  upon  this  question.'^ 

Mr.  Frederick  Pollock,  in  his  treatise  on  the  Principles  of 
Contract  (p.  163),  seems  to  suppose  that  this  case^  involved  a 
new  promise  by  the  plaintiff,  and  not  merely  the  act  of  deliver- 
ing on  the  strength  of  defendant's  promise.  He  says  :  "In  the 
case  where  the  party  is  already  bound  to  do  the  same  thing, 
but  only  by  contract  with  a  third  person,  there  is  some  differ- 
ence of  opinion.  But  there  seems  to  be  no  valid  reason  why 
ihc^  promise  should  not  be  good  in  itself,  and  therefore  a  good 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 

'  The  citation  of  cases  has  been  omitted. — Ed. 

2  Scotson  V.  Pegg,  supra,  p.  475. 

In  the  case  where  the  party  is  already  bound  to  do  the  same  thing,  but 
only  by  contract  with  a  third  person,  there  is  some  difference  of  opinion. 
The  new  promise  purports  to  create  a  new  and  distinct  right,  which,  if 
really  created,  must  always  be  of  some  value  in  law,  and  may  be  of  appre- 
ciable value  in  fact.  .  .  . 

The  reasoning  of  these  cases  (Shadwell  v.  Shadwell  ;  Scotson  v.  Pegg) 
assumes  that  a  promise  to  A.  to  perform  an  existing  duty  to  B.  is  itself  en- 
forceable by  A.,  which  is  not  clear  on  principle,  and  has  not  been  directly 
decided.  Perhaps  the  best  explanation  is  that  the  promise  to  perform  an 
existing  contract  with  B.  is  to  be  read  as  being  or  including  a  promise  not 
to  exercise  the  right  of  rescinding  it  with  B.'s  consent. — Pollock  on  Con- 
tracts (4th  ed),  178-179.— Ed. 


SEC.  Il(/.]  MERRICK   AND   DURANT   T'.    GIDDINGS.  4S3 

consideration.  //  creates  a  new  and  distinct  ri^/it,  which  must  be 
always  of  some  value  in  law,  and  may  be  of  appreciable  value 
in  fact.  There  are  many  ways  in  wliich  B.  may  be  very  much 
interested  in  A.'s  performing  his  contract  with  C,  but  yet  so 
that  the  circumstances  which  give  him  an  interest  in  fact  do 
not  give  him  any  interest  which  he  can  assert  at  law.  It  may 
well  be  worth  his  while  to  give  something  for  being  enabled 
to  insist  in  /lis  07un  right  on  the  thing  being  done.  This  opinion 
has  been  expressed  and  acted  on  in  the  Court  of  E.xchequer 
(Scotson  V.  Pegg),  and  seems  implied  in  tlie  judgment  of  the 
majority  of  the  Court  of  Common  Pleas  some  weeks  earlier." 

The  rule  established  by  these  authorities  is,  that  a  promise 
made  in  consideration  of  the  doing  of  an  act  which  the  promisee 
is  already  under  obligation  to  a  third  party  to  do,  though  made 
as  an  inducement  to  secure  the  doing  of  that  act,  is  not  binding 
because  it  is  not  supported  by  a  valuable  consideration.  We 
conceive  this  to  be  clearly  true  when  the  act  done  on  the  part 
of  the  promisee  involves  nothing  more  than  performance  of  the 
original  obligation  totvard  the  party  to  whom  it  was  due.  On  the 
other  hand,  if  the  promise  be  made  in  consideration  of  2l promise 
to  do  that  act,  entered  into  directl}'^  with  the  promisor,  as  indi- 
cated by  Mr.  Pollock,  or  in  consideration  that  some  dispute  is 
thereby  determined,  or  that  some  right  is  waived,  as  suggested 
by  the  remarks  of  Martin,  B.,  in  Scotson  v.  Pegg,  then  the 
promise  is  binding,  because  not  made  in  consideration  of  the 
performance  of  a  subsisting  obligation  to  another  person,  but 
upon  a  new  consideration  moving  between  the  promisor  and 
promisee.  We  do  not  perceive  that  Shadwell  v.  Shadwell  or 
Scotson  V.  Pegg  are  opposed  to  this  view  ;  though  some  obser- 
vations were  thrown  out  by  the  learned  judges  during  the  argu- 
ment which  we  cannot  reconcile  with  it,  and  which  we  cannot 
assent  to. 

We  think  that  the  consideration  on  which  this  defendant's 
promise  to  the  plaintiffs  is  alleged  to  have  been  founded  is  gov- 
erned by  the  rule  which  we  have  stated.  It  is  claimed  that  the 
services  rendered  by  the  plaintiffs  in  the  proceeding  against 
Chiles,  in  the  Supreme  Court  of  the  United  States,  were  ren- 
dered at  the  request  of  the  defendant,  and  constituted  the  con- 
sideration for  his  subsequent  promise. 

But  it  appears  that,  at  the  time  when  they  are  said  to  have 
carried  on  these  proceedings  at  his  request,  they  had  already 
been  retained  by  and  were  under  a  legal  obligation  to  the  State 
of  Texas  to  perform  these  services  ;  and  it  is  not  shown  that 
they  promised  the  defendant  that  they  would  continue  them,  or 
that  they  were  induced  by  defendant's  request  to  determine  any 


484  MERRICK  AND   DURANT  V.   GIDDINGS.         [CHAP.  i. 

dispute  as  to  their  obligations,  or  to  waive  any  claim.  In  a 
word,  no  other  consideration  for  any  promise  by  the  defendant, 
than  the  performance  of  what  they  were  legally  bound  to  per- 
form by  a  subsisting  contract  with  another  party,  is  shown  ; 
and  the  plaintiffs  have  shown,  on  the  other  hand,  in  their  own 
behalf,  that  they  actually  did  perform  that  act  under  their  prior 
contract.  We  hold  that  these  services  could  not  serve  as  a  con- 
sideration for  any  promise  by  the  defendant,  even  if  it  had  been 
made  at  the  time  of  the  request  for  their  performance.  It  may 
be  added  that,  even  if  they  could  serve  this  purpose,  they  are 
not  shown  by  any  evidence  to  have  been,  as  a  ffiatter  of  fact,  the 
consideration  on  which  the  promise  here  insisted  on  was  based. 
What  the  consideration  for  a  promise  was  is  a  matter  of  evi- 
dence, and  this  consideration  is  not  shown  to  have  been  referred 
to,  or  to  have  been  in  the  minds  of  the  parties.  We  know  of 
no  principle  which  would  have  authorized  a  jury  to  assume,  in 
the  absence  of  affirmative  proof,  that  some  past  benefit,  con- 
ferred at  a  party's  request,  was  intended  to  serve  as  a  reason  or 
consideration  of  a  subsequent  promise,  whose  terms  in  no  way 
referred  to  it,  merely  because  it  was  an  event  which  had  once 
happened  between  the  same  parties.  The  antecedents  of  par- 
ties are  not  to  be  sifted  for  a  consideration. 

Again,  it  should  appear  in  some  way  that  these  services  were, 
in  fact,  rendered  in  consequence  of  defendant's  request.  If  the 
plaintiffs  were  already  bound  by  their  confact  with  another 
party  to  perform  them,  and  were  actually  performing  them  at 
the  time  of  defendant's  request  ;  in  other  words,  if  they  were 
already  moved  by  a  sufficient  legal  cause,  the  mere  fact  of  a 
request  by  a  new  party  is  not  evidence  that  they  were  caused 
by  that  request  ;  and  this  record  discloses  no  other  affirmative 
evidence  tending  to  show  that  the  plaintiffs  did,  in  fact,  act 
upon  that  request.  Indeed,  by  showing,  in  their  own  behalf, 
that  they  obtained  judgment  against  Chiles  under  their  contract 
with  the  State  of  Texas  (Rec.  15),  they  have  shown  that  they 
did  not  act  upon  defendant's  request. 

Judgment  is  accordingly  affirmed. 


SEC.  Ilfl'.]  ABBOTT   V.    DOANE,   JR.  485 


LEWIS   F.  F.  ABBOTT  v.  VALENTINE    DOANE,  JR. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
April  6,  1895. 

[Reported  m  163  Massachusetts  Reports  433. J 

Contract  upon  a  promissory  note  for  $500,  dated  Decem- 
ber 27th,  1892,  payable  in  three  months  after  date  to  the  order  of 
the  plaintiff,  and  signed  by  the  defendant.  Tlie  answer  set  up 
want  of  consideration.  At  the  trial  in  the  Superior  Court,  before 
Bond,  J.,  the  jury  returned  a  verdict  for  the  plaintiff,  and  the 
defendant  alleged  exceptions.     The  facts  appear  in  the  opinion. 

W.  B.  French  for  the  defendant. 

H.  L.  Parker,  Jr.,  for  the  plaintiff. 

Allen,  J.  The  plaintiff  had  given  his  accommodation  note 
to  a  corporation,  which  had  had  it  discounted  at  a  bank,  and 
left  it  unpaid  at  its  maturity.  The  defendant,  being  a  stock- 
holder, director,  and  creditor  of  the  corporation,  wishing  to 
have  the  note  paid  at  once  for  his  own  advantage,  entered  into 
an  agreement  with  the  plaintiff  whereby  he  was  to  give  to  the 
plaintiff  his  own  note  for  the  amount,  and  the  plaintiff  was  to 
furnish  money  to  enable  the  defendant  to  take  up  the  note  at 
the  bank.  This  agreement  was  carried  out,  and  the  defendant 
now  contends  that  his  note  to  the  plaintiff  was  without  consider- 
ation, because  the  plaintiff  was  already  bound  in  law  to  take  up 
the  note  at  the  bank. 

It  is  possible  that,  for  one  reason  or  another,  both  the  bank 
and  the  plaintiff  may  have  been  willing  to  wait  a  while,  but 
that  the  defendant's  interests  were  imperilled  by  a  delay,  and 
indeed  required  that  the  note  should  be  paid  at  once,  and  that 
the  corporation,  whose  duty  it  was  primarily  to  pay  it,  was 
without  present  means  to  do  so.  Since  the  defendant  was  sane, 
sui juris,  was  not  imposed  upon  nor  under  duress,  knew  what 
he  was  about,  and  probably  acted  for  his  own  advantage,  it 
would  certainly  be  unfortunate  if  the  rules  of  law  required  us 
to  hold  his  note  invalid  for  want  of  a  sufficient  consideration, 
when  he  has  had  all  the  benefit  that  he  expected  to  get  from  it. 

In  this  Commonwealth  it  was  long  ago  decided  that,  even 
between  the  original  parties  to  a  building  contract,  if  after 
having  done  a  part  of  the  work  the  builder  refused  to  proceed, 
but  afterward,  on  being  promised  more  pay  by  the  owner,  went 
on  and  finished  the  building,  he  might  recover  the  whole  sum 
so  promised. 

But  when  one  who  is  unwilling  or  hesitating  to  go  on  and  per- 
form a  contract  which   proves  a  hard  one   for  him   is  requested 


486  ABBOTT   V.   DOANE,   JR.  [CHAP.  I. 

to  do  SO  by  a  third  person  who  is  interested  in  such  perform- 
ance,'though  having  no  legal  way  of  compelling  it,  or  of  recov- 
ering damages  for  a  breach,  and  who  accordingly  makes  an 
independent  promise  to  pay  a  sum  of  money  for  such  perform- 
ance, the  reasons  for  holding  him  bound  to  such  payment  are 
stronger  than  where  an  additional  sum  is  promised  by  the  party 
to  the  original  contract. 

Take  an  illustration.  A.  enters  into  a  contract  with  B.  to  do 
something.  It  may  be  to  pay  money,  to  render  service,  or  to 
sell  land  or  goods  for  a  price.  The  contract  may  be  not  espe- 
cially for  the  benefit  of  B.,  but  rather  for  the  benefit  of  others  ; 
as,  e.o-.,  to  erect  a  monument,  an  archway,  a  memorial  of  some 
kind,  or  to  paint  a  picture  to  be  placed  where  it  can  be  seen  by 
the  public.  The  consideration  moving  from  B.  may  be  exe- 
cuted or  executory  ;  it  may  be  money,  or  anything  else  in  law 
deemed  valuable  ;  it  may  be  of  slight  value  as  compared  with 
what  A.  has  contracted  to  do.  Now  A.  is  legally  bound  only 
to  B.,  and  if  he  breaks  his  contract  nobody  but  B.  can  recover 
damages,  and  those  damages  may  be  slight.  They  may  even 
be  already  liquidated  at  a  small  sum  by  the  terms  of  the  con- 
tract itself.  Though  A.  is  legally  bound,  the  motive  to  perform 
the  contract  may  be  slight.  If  after  A.  has  refused  to  go  on 
with  his  undertaking,  or  while  he  is  hesitating  whether  to  per- 
form it  or  submit  to  such  damages  as  B.  may  be  entitled  to  re- 
cover, other  persons  interested  in  having  the  contract  performed 
intervene,  and  enter  into  a  new  agreement  with  A.,  by  which  A. 
agrees  to  do  that  which  he  was  already  bound  by  his  contract 
with  B.  to  do,  and  they  agree  jointly  or  severally  to  pay  him  a 
certain  sum  of  money,  and  give  their  note  or  notes  therefor, 
and  A.  accordingly  does  what  he  had  before  agreed  to  do,  but 
what  perhaps  he  might  not  otherwise  have  done,  no  good  reason 
is  perceived  why  they  should  not  be  held  to  fulfil  their  promise. 
They  have  got  what  they  bargained  for,  and  A.  has  done  what 
otherwise  he  might  not  have  done,  and  what  they  Could  not 
have  compelled  him  to  do. 

Without  dwelling  further  on  the  reasons  for  the  doctrine,  it 
seems  to  us  better  to  hold,  as  a  general  rule,  that  if  A.  has 
refused  or  hesitated  to  perform  an  agreement  with  B.,  and  is 
requested  to  do  so  by  C,  who  will  derive  a  benefit  from  such 
performance,  and  who  promises  to  pay  him  a  certain  sum  there- 
for, and  A.  thereupon  undertakes  to  do  it,  the  performance 
by  A.  of  his  agreement  in  consequence  of  such  request  and 
promise  by  C.  is  a  good  consideration  to  support  C.'s  promise.' 
Exceptions  overruled. 

1  The  citation  of  authorities  has  been  omitted  —Ed. 


SEC.  11^,]  ARENL)   7'.    SMITH.  48/ 


L.  F.  W.  AREND,  Respondent,  v.  CHRISTOPHER  SMITH, 

Appellant. 

In  the  Court  of  Appeals  of  New  York,  January  19,  1897. 
^Reported  in  151  Ne-u)  York  Reports  502.  J 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fifth  judicial  department,  entered  November  26th, 
1894,  which  affirmed  a  judgment  in  favor  of  plaintiff  entered 
upon  a  verdict  directed  by  the  Court. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion. 

Stephen  Lockwood  for  appellant. 

Mason  6^  Kellogg  for  respondent. 

Vann,  J.  On  February  17th,  1893,  the  plaintiff  was  president 
of  a  railroad  corporation  to  which  the  defendant  was  indebted 
in  the  sum  of  $1000,  then  past  due,  upon  a  subscription  for 
stock  issued  to  him  by  the  company.  The  plaintiff,  as  presi- 
dent, demanded  payment  of  the  sum  subscribed,  and  threatened 
suit  by  the  company  in  case  it  was  not  paid,  as  he  had  on  one 
occasion  about  a  month  before.  The  defendant  said  that  he 
had  plenty  of  property,  but  owing  to  the  hard  times  he  had  no 
money,  and  could  not  then  pay  the  debt.  The  plaintiff  asked 
him  for  his  note,  and  said  that  he  could  get  it  discounted,  and 
the  defendant  replied  that  when  the  note  fell  due  he  would  not 
be  able  to  pay  it.  The  plaintiff  then  said  that  when  the  note 
became  due  he  would  "  renew  it  and  renew  it  again,"  if  the 
defendant  so  desired.  The  defendant  thereupon  made  his  prom- 
issory note  for  $500  at  three  months  and  delivered  it  to  the 
plaintiff,  who  at  once  endorsed  it,  procured  it  to  be  discounted 
at  a  bank,  and  paid  the  proceeds  over  to  the  railroad  company 
to  apply  upon  the  debt  of  the  defendant,  who  himself  paid  the 
sum  charged  by  the  bank  for  discounting  the  note.  The  plain- 
tiff had  no  pecuniary  interest  in  the  debt  or  the  note,  except  as 
an  endorser  for  the  accommodation  of  the  defendant.  On 
May  22d,  1893,  when  the  note  became  due,  the  defendant  could 
not  pay  it,  and  so  informed  the  plaintiff,  who  told  him  to  make 
out  a  new  note,  and  added  that  he  had  better  make  it  for  ^1000, 
so  as  to  pay  the  balance  of  the  subscription,  and  that  he,  the 
plaintiff,  would  get  it  discounted.  The  new  note  was  accord- 
ingly made  for  that  amount  and  delivered  to  the  plaintiff  by  the 
defendant,  who  promised  to  pay  the  sum  charged  as  discount 
as  soon  as  it  could  be  ascertained.  Owing  to  stringency  in  the 
money  market,  the  banks  refused   to  discount  the  note,  and  the 


^88  AREND   V.    SMITH.  [CHAP.  I., 

plaintiff  notified  the  defendant  that  he  must  take  care  of  the 
first  note,  but  he  omitted  to  do  so.  On  June  6th  the  second 
note  was  returned  to  the  defendant,  who  accepted  it,  and  has 
retained  it  ever  since.  The  plaintiff  was  compelled  to  pay  the 
bank  the  amount  of  the  first  note,  which  was  thereupon  deliv- 
ered to  him,  and  this  action  was  brought  to  recover  the  sum  so 
paid  from  the  defendant.  The  answer  sets  up  as  a  defence  the 
agreement  to  renew  and  the  violation  thereof  by  the  plaintiff, 
and  the  only  question  presented  for  decision  is  whether  that 
ao-reement  was  supported  by  a  sufficient  consideration. 

When  the  agreement  in  question  was  made  the  defendant 
owed  the  plaintiff  nothing,  but  he  owed  the  railroad  company 
$1000  that  was  then  due.  He  was  under  a  lawful  obligation  to 
pay  that  debt,  and  the  giving  of  a  note  to  raise  money  for  that 
purpose  was  an  advantage  to  him  only,  as  it  extended  the  time 
of  payment.  As  he  did  no  more  than  his  duty,  no  consideration 
could  arise  from  the  act.  The  payment  of  a  valid  and  admitted 
debt  by  the  one  who  owes  it  is  no  foundation  for  a  promise, 
even  by  the  creditor,  let  alone  a  stranger  to  the  original  con- 
sideration. The  defendant  parted  with  nothing  that  the  law 
recognizes  as  of  value,  and  suffered  nothing  that  the  law  recog- 
nizes as  an  injury.  He  virtually  borrowed  the  credit  of  the 
plaintiff  to  pay  a  precedent  debt  that  he  owed  to  a  third  party. 
When  the  note  was  delivered  to  the  plaintiff  he  had  no  title  to 
it,  but  simply  held  it  as  the  agent  of  the  defendant,  for  the  pur- 
pose of  procuring  it  to  be  discounted  for  his  benefit.  While  he 
requested  payment  of  the  debt,  it  was  only  as  president  that  he 
did  so,  and  in  that  capacity  he  had  the  right  to  demand  it.  As 
the  defendant  did  not  have  the  money  the  plaintiff  requested 
him  to  give  a  note,  not  for  his  own  advantage,  but  in  order  to 
raise  money  for  the  accommodation  of  the  defendant  himself. 
Under  these  circumstances  the  promise  of  the  plaintiff  was  a 
naked  engagement  that  involved  no  legal  obligation,  but  rested 
wholly  upon  the  integrity  and  good  faith  of  the  one  who  made 
it,  with  no  power  in  the  courts  to  compel  performance  or  to 
award  damages  for  non-performance.  As  was  well  observed  by 
one  who  wrote  almost  the  first  work  upon  the  common  law  that 
is  now  extant,  "  A  nude  or  naked  promise  is  where  a  man 
promiseth  another  to  give  him  certain  money  such  a  day,  or  to 
build  a  house,  or  to  do  him  such  certain  service,  and  nothing  is 
assigned  for  tlie  money  or  for  the  building,  or  for  the  service. 
These  be  called  naked  promises,  because  there  is  nothing 
assigned  why  they  should  be  made,  and  no  action  lieth  in  these 
cases,  though  they  be  not  performed."  (Doctor  and  Student, 
Dial.  2,  ch.  24.)     Although  the  promise  in  this  case  was  made 


SEC.  ue.]  ATKINSON   V.    SETTREE.  489 

to  induce  performance,  as  the  act  performed  was  less  than  the 
legal  duty  already  resting  upon  the  defendant,  it  was  incapable 
of  sustaining  an  action  or  maintaining  a  defence.  While  the 
plaintiff  was  doubtless  interested  in  the  corporation,  and  thus 
indirectly  interested  in  the  debt  owing  it  by  the  defendant,  still 
he  owned  no  part  of  that  debt,  for  it  belonged  wliolly  to  the 
railroad  company.  Even  if  he  had  owned  it  all,  however,  his 
promise  would,  notwithstanding,  have  been  without  considera- 
tion, for,  at  the  most,  he  simply  induced  the  defendant  to  do 
indirectly  what  the  law  required  him  to  do  directly,  and  that 
was  to  pay  his  own  debt.  No  consideration  can  arise  simply 
from  the  method  of  doing  an  act  which  it  is  one's  duty  to  do. 
The  subject  does  not  admit  of  extended  discussion,  for  it  has 
been  a  principle  of  the  common  law  from  the  earliest  times  that 
a  promise  without  a  legal  consideration  as  an  equivalent  cannot 
be  enforced,  and  it  is  well  settled  that  "  the  performance  of  an 
act  which  the  party  is  under  a  legal  obligation  to  perform  can- 
not constitute  a  consideration  for  a  new  contract."  (Robin- 
son V.  Jewett,  116  N.  Y.  40.) 

The  judgment  should  be  affirmed,  with  costs. 

All  concur,  except  Haight,  J.,  not  sitting. 

Judgment  affirmed. 


(e)  Performance  of,  or  promise  to  perform  a  non-contract  obligation. 

ATKINSON  V.   SETTREE. 

In  the  Common  Pleas,  May  7,  1744. 

[Reported  in  IVilles  482.  J 

This  was  a  special  action  on  the  case.  The  first  count  stated 
that  on  December  nth,  in  the  sixteenth  year,  etc.,  at  Westmin- 
ster, and  within  the  jurisdiction  of  the  Court  of  our  Lord  the 
King  of  his  palace  of  Westminster,  the  plaintiff,  in  order  to 
procure  the  payment  of  the  sum  of  jQ"]  i?>s.  which  Catherine 
Grimaldi  then  owed  him,  by  a  certain  writ  dated  December  loth 
in  the  same  year  duly  issued  out  of  the  Court  of  Record  of  our 
said  Lord  the  King  of  his  palace  of  Westminster  at  the  plain- 
tiff's request,  and  directed  to  the  bearers  of  the  virge  of  the 
household,  etc.,  officers  and  ministers  of  the  said  Court,  com- 
manding them  to  take  the  said  Catherine  by  her  body  if  she 
should  be  found  within  the  jurisdiction  of  that  Court,  and  have 
her  at  the  then   next  Court  to  be  holden  on  Friday,   J^ecem- 


490 


ATKINSON   V.    SETTREE.  [CHAP.  I. 


ber  17th,  then  next  to  answer,  etc.,  and  procured  the  said 
Catherine  to  be  arrested,  etc.,  and  to  be  there  kept  and  de- 
tained in  prison,  etc.  ;  that  afterward,  on  the  said  Decern 
ber  nth,  in  consideration  that  the  plaintiff  at  the  request  of  the 
defendant  undertook  to  release  and  discharge  the  said  Catherine 
from  her  said  imprisonment,  the  defendant  promised  to  pay  the 
plaintiff  ;jQ^  i8j.,  and  also  the  costs  and  charges  by  the  plaintiff 
expended  in  that  suit,  with  an  averment  that  those  costs 
amounted  to  15.?.  4^.,  and  that  the  plaintiff  at  the  defendant's 
lequest  discharged  the  said  Catherine  from  her  said  imprison- 
ment. There  was  a  second  count  in  the  declaration  which, 
though  it  varied  from  the  first  in  several  particulars,  was  equally 
open  to  the  objection  afterward  made  to  the  first.  There  was 
also  a  third  count  for  money  had  and  received. 

The  defendant  pleaded  the  general  issue,  and  at  the  trial  the 
plaintiff  obtained  a  verdict  on  all  the  counts,  with  ^8  13^.  4^. 
damages. 

A  motion  was  made  in  Michaelmas  Term,  1743,  in  arrest  of 
judgment,  which  was  opposed  this  day  by  Prime  and  Wynne 
and  supported  by  Skinner  and  Draper,  and  at  a  subsequent 
time  the  rule  was  discharged.' 

'  The  grounds  of  the  judgment  do  not  appear  in  Lord  Chief  Justice 
Willes's  books,  but  the  following  account  is  taken  from  Mr.  J.  Abney's 
manuscript  :  "  Skhtfier  and  Draper  moved  in  arrest  of  judgment.  First, 
it  does  not  appear  that  any  plaint  was  levied,  and  without  that  a  capias 
ought  not  to  issue.  Secondly,  it  does  not  appear  that  the  cause  of  action  in 
the  Court  below  arose  within  the  jurisdiction,  and  then  the  arrest  was 
illegal,  and  there  was  no  good  consideration  to  support  the  promise,  i  Rol. 
Abr.  809  ;  2  Mod.  30,  197  ;  3  Lev.  23  ;  i  Saund.  74  ;  2  Ld.  Raym.  1310. 
This  is  a  void  arrest,  and  therefore  the  discharge  is  no  consideration. 
Godb.  358. 

"Prime  and  Wynne,  for  the  plaintiffs,  insisted  that  to  support  this  action 
in  the  superior  court  it  was  immaterial  whether  or  not  there  were  a  cause 
of  action  in  the  inferior  court,  or  whether  or  not  the  Court  below  had  a  ju- 
risdiction. The  declaration  sets  out  the  writ  duly  issued,  commanding  the 
bearer  of  the  virge  to  arrest  the  party  if  found  within  the  jurisdiction,  and 
there  to  detain  her.  Salk.  202,  2  And  the  case  of  Peacock  v.  Roll  in 
I  Saund.  74  relates  only  to  cases  determined  in  the  inferior  court  and 
brought  up  by  error.  The  case  of  Randal  v.  Harvey  is  better  reported  in 
Palm.  394  than  in  Godb.  358.  If  the  plaintiff's  consent  were  necessary  to 
release  Grimaldi,  and  the  officer  could  not  discharge  her  without,  then  there 
is  a  good  consideration  to  support  the  promise.  They  argued  that  it  was 
not  necessary  that  the  arrest  and  detainer  should  be  legal  in  order  to  make 
a  good  consideration,  and  for  that  purpose  thej'  cited  i  Rol.  Abr.  12,  pi.  12  ; 
1  Rol.  Abr  19,  pi.  6  ;  Hob.  216  ;  Sir  T.  Raym.  204  ;  i  Rol.  Abr.  27,  pi.  47  ; 
Sty.  249.  Besides  this  is  after  a  verdict,  it  having  been  proved  to  the  satis- 
faction of  Abney,  J.,  w-ho  tried  the  cause,  that  the  arrest  and  promise  were 
within  the  jurisdiction  of  the  Palace  Court,  i  Sid.  30.  If  a  judgment  be 
irregular  or  erroneous,  to  forbear  to  sue  out  execution  is  a  good  considera- 


SEC.  II<?.]  HERRING    V.    DORKI.L.  49! 

HERRING  V.  DORELL. 

In.  the  Queen's  Bench,  Trinity  Term,  1840. 

\Reporti'd  in  8  Dow  ling  604.  J 

R.  V.  Richards  showed  cause  against  a  rule  nisi,  obtained 
by  V.  Williams  for  arrest  of  judgment  or  a  new  trial  in  this 
case.  The  case  had  been  tried  before  the  sheriff  of  Brecon,  and 
a  verdict  found  in  favor  of  the  plaintiff  for  j[^2  \os.  id.  The 
ground  of  seeking  to  arrest  the  judgment  was,  tliat  no  sufficient 
consideration  for  the  promise  by  the  defendant  was  disclosed 
on  the  face  of  the  declaration.  The  substance  of  the  declara- 
tion was  that  a  person  named  Watkins  and  a  person  named 
Voss  were  joint  debtors  to  the  plaintiff.  The  plaintiff  proceeded 
against  them,  and  ultimately  took  Watkins  and  Voss  in  execu- 
tion. An  arrangement  was  made  between  Watkins  and  the 
plaintiff,  and  accordingly  the  former  was  discharged  out  of 
custody.  Voss  remained  in  custody,  and  in  consideration  of 
the  discharge  of  Voss,  the  declaration  alleged  that  the  defend- 
ant undertook  to  pay  the  sum  of  jQ2  10s.  id.  due  from  Voss  to 
the  plaintiff,  and  Voss  was  accordingly  discharged.  It  was 
contended,  in  support  of  the  rule,  that  the  plaintiff  having  dis- 
charged Watkins,  who  was  jointly  liable  with  Voss,  that  had 
the  effect  of  entitling  Voss  to  his  discharge.  Richards  sub- 
mitted that  even  after  the  discharge  of  Watkins,  some  step 
being  necessary,  in  order  to  obtain  the  discharge  of  Voss,  some 
portion  of  his  imprisonment,  until  that  step  could  be  taken, 
must  be  considered  as  lawful.  Suppose  the  prisoners  had  been 
confined  in  two  different  jails,  one  in  Cornwall  and  the  other  in 
Northumberland,  and  one  of  them  was  discharged  in  Cornwall, 
some  time  must  be  allowed  in  order  to  discharge  the  other  de- 
fendant from  the  jail  in  Northumberland.      The  detention  of 

tion  to  support  an  assmnpsit,  2  Rol.  Rep.  495  ;  Yelv.  25  ;  i  Ventr.  120  ; 
2  Lev.  3  ;  I  Lev.  257  ;  i  Sid.  392  ;  Sir  T.  Raym.  211  ;  Poph.  1S3  ;  i  Sid.  89  ; 
I  Saund.  229  ;  and  2  Ld.  Raym.  795. 

"The  Court  inclined  to  think  that  if  the  partj'  were  under  an  illegal 
arrest  or  imprisonment  the  promise  was  not  good,  but  the  question  was 
whether  as  this  was  after  a  verdict  it  did  not  now  sufficiently  appear  that 
the  writ  duly  issued  below,*  and  consequently  that  the  suit  arose  within  the 
jurisdiction  ;  and  that  this  case  greatly  differed  from  writs  of  error  on  judg- 
ments in  the  inferior  court  where  nothing  shall  be  intended.  But  they 
ordered  it  to  be  spoken  to  again,  and  afterward  the  plaintiff  had  judgment." 
— M.  S.  Abney,  J. 

*  It  was  expressly  stated  in  the  declaration  that  the  writ  duly  issued,  etc. 


492 


HERRING   I'.    DORELL.  [cHAP.  I. 


the  second  defendant  until  his  discharge  must  be  considered  as 
lawful.     The  smallest  consideration  was  sufficient   to   support 
the  promise  alleged  in  the  declaration,  and  here  was  some  con- 
sideration for  that  purpose.     If  the  proceeding  could  be  consid- 
ered as  a  nullity,  then  the  plaintiff  would  be  liable  to  an  action 
of  trespass,  but  in  Crozer  v.  Pilling,"  it  appeared  that  an  action 
on  the  case  was  the  proper  remedy,  and  not   an  action  of  tres- 
pass.    There  it  was  held  that  a  plaintiff  is  bound  to  accept  from 
a  defendant  in  custody  under  a  ca.  sa.  the  debt  and  costs  when 
tendered  in  satisfaction  of  his  debt,  and  to  sign  an  authority  to 
the  sheriff  to  discharge  the  defendant  out  of  custody  ;  and  that 
an  action  on  the  case  will  lie  against  the  plaintiff,  for  maliciously 
refusing  so  to  do.     The  case  of  Smith  v.  Eggington'  was  an 
authority  to  the  same  effect.     The  imprisonment  was  legal  in 
its  commencement,  and,  therefore,  the  sheriff  could  not  be  liable 
as  a  trespasser.     It  was  not,   therefore,  a  void   imprisonment. 
The  case  of  Atkinson  v.  Bayntun'  was  an  authority  to  show  that 
sufficient  consideration  was  disclosed  on   the  face  of  this  decla- 
ration to  support  the  defendant's  promise.     The  marginal  note 
was,  "  M.  being  in  custody  on  execution,  pursuant  to  a  warrant 
of  attorney,  by  which  he  had  agreed  that  execution  should  issue 
from  time  to  time  for  certain  instalments  of  a  mortgage  debt, 
defendant,  in  consideration  that  plaintiff  would  discharge  M. 
out  of  custody,  undertook  that  he  should,  if  necessary,  be  forth- 
coming for  a  second  execution.      Held  that   defendant's  was  a 
valid   contract."     He   cited   Sturlyn  v.    Albany*  and   PuUin  v. 
Stokes.*     There  A.  having  recovered  judgment  against  B.,  and 
a.fi.fa.  being  delivered  to  the  sheriff  in  consideration  of  A.  at 
the  special  request  of  C,  had  requested  the  sheriff  not  to  exe- 
cute the  writ,  C.  promised  to  pay  A.  the  debt  and  costs  together 
with  the  sheriff's  poundage,  bailiff's  fees,  and   other  charges. 
On  a  judgment  by  default  and  error  brought,  the  promise  was 
holden  to  be  binding  on  C,  though   it  was  not  averred  that  the 
sheriff   did    in    fact   desist   from    the   execution,    nor  what   the 
amount  of  the  poundage,  etc.,  was,  nor  that  the  defendant  had 
notice  of  such  amount.     In  the  present  case  Voss  was  not  taken 
in   execution   after  the  discharge   of  Watkins,   but  both   were 
legally  in  custody  at  the  time  of  Watkins's  discharge.     The  de- 
tention of  one  prisoner  in  such  a  case  could  not  be  considered 
as  a  trespass.     But  suppose  it  should  be  said  that  the  plaintiff 
was  bound  to  take  steps  to  discharge  Voss.     If  he  was,  he  was 
entitled  to  a  reasonable  time  for  that  purpose.      During   the 
time  that  elapsed  before  his  actual  discharge  he  was  in  legal 

'  4  B.  &  C.  26  ;  6  Dowl.  &  Ry.  129.  ^  Ante,  Vol.  VI.,  p.  3S. 

2  I  Scott,  404  ;  I  B.  N.  C.  444.  •»  Cro.  Eliz.  67.  "  2  H.  Bl.  312 


SEC.  IT^.]  HERRING  V.    DORELL.  493 

custody.  That  custody  furnished  a  sufficient  consideration  to 
support  the  defendant's  promise. 

V.  ]Vinia7ns  in  support  of  the  rule.  This  was  an  action  on  a 
promise  alleged  to  hav^e  been  made  by  the  defendant  to  pay  a 
certain  debt  due  from  Voss,  who  was  in  custody,  if  the  plaintiff 
would  release  him.  The  joint  debt  of  the  two  had,  in  point  of 
law,  been  satisfied,  by  taking  the  defendants,  Watkins  and  Voss, 
in  execution  and  discharging  Watkins  out  of  custody.  It  was, 
therefore,  no  consideration  for  the  plaintiff  to  consent  to  the 
discharge  of  Voss  out  of  custody,  since  it  was  that  to  which  he 
was  absolutely  entitled.  Here  was  an  execution  against  two 
joint  debtors.  They  were  both  taken  in  execution.  The  plain- 
tiff consented  to  the  discharge  of  one  of  them.  The  authorities 
showed  that  the  legal  operation  of  the  discharge  of  one  of  two 
joint  debtors  was  the  discharge  of  the  debt.  The  imprisonment 
of  the  latter  debtor,  therefore,  was  clearly  illegal.  He  cited 
Clarke  v.  Clement/  Nadin  v.  Battle,"  Good  v.  Wilks,'  BassetV 
Salter.*  In  the  last  case  even  an  escape  with  the  consent  of  the 
plaintiff  was  held  to  be  sufficient  to  prevent  him  from  ever 
taking  the  defendant  in  execution  for  the  same  matter.  The 
discharge  of  Watkins  operated  as  if  there  had  been  actual  pay- 
ment of  the  debt.  If  so,  then  it  must  be  contended,  on  the 
other  side,  that  if  the  whole  debt  had  been  paid,  that  would 
afford  a  good  consideration  for  such  a  promise.  In  the  case  of 
Crozer  v.  Pilling  it  was  held  that  an  action  on  the  case  would 
lie  for  detention  of  the  defendant,  after  a  tender  of  the  debt  and 
costs,  in  consequence  of  the  plaintiff  not  signing  a  discharge. 
With  respect  to  the  sufficiency  of  the  consideration  in  the  pres- 
ent case,  Atkinson  v.  Settree^  was  an  authority  to  show  that  the 
consideration  here  was  insufficient.  There  it  was  held  that  if  A. 
be  illegally  arrested  by  B.  for  a  debt,  a  promise  by  C.  to  pay 
the  debt  claimed  by  B.  in  consideration  of  B.'s  releasing  A.  out 
of  custody  is  void.      He  cited  Stilk  v.  Myrick,'  Harris  v.  Watson.' 

Coleridge,  J.  The  question  in  this  case,  whether  this  was  a 
good  consideration  or  not,  depends  upon  the  situation  of  Voss 
at  the  time  of  his  discharge.  Both  he  and  Watkins  had  been 
taken  under  a  joint  execution.  Watkins  made  certain  terms 
with  the  plaintiff,  and  the  latter  voluntarily  discharged  him. 
No  terms  were  made  as  to  the  situation  of  Voss,  his  rights  were, 
therefore,  to  be  considered  according  to  the  situation  in  which 
the  law  had  placed  him.  Suppose  Watkins  alone  had  been  in 
custody,  it  is  clear  that  the  voluntary  discharge  of  him  would 
have  been  a  discharge  of  the  debt,  and  no  other  proceedings 

'  6  T.  R.  525.  5  5  East,  147.  »  6  Mau.  &  S.  ^13. 

*  2  Mod.  136.  *  Willes,  4S2.  *  2  Campb.  317.  '  Peake's  Ca.  726 


494 


SMITH    AND    ANOTHER   V.    MONTHITH.  [CHAP.  I. 


could  have  been   taken   to  recover  it.     It  seems  to  me  in  the 
same  way  that  the  dischaige  of  Watkins  operated  to  release 
Voss    his  co-debtor.     I   think,  therefore,  both  on  principle  and 
authority  that  this  rule  ought  to  be  made  absolute. 
Rule  absolute. 


SMITH  AND  Another  v.  MONTEITH. 

In  the  Exchequer,  November  i8,  20,  1844. 

S^Reported  in  13  Meeson  &^  Welsdy  426.  J 

Assumpsit.  The  declaration  stated  that,  before  and  at  the 
time  of  the  making  of  the  promise  of  the  defendant  thereinafter 
next  mentioned,  an  action  had  been  commenced  and  was  de- 
pending by  and  at  the  suit  of  the  plaintiffs  against  one  Charles  J. 
Dunlop,  in  the  Court  of  our  Lady  the  Queen  before  the  Barons 
of  her  Exchequer  at  Westminster,  for  the  recovery  of  a  certain 
sum  of  money,  to  wit,  the  sum  of  ;£^t,  ds.  \id.;  that  the  said 
C.  J.  Dunlop,  after  the  commencement  of  the  said  action,  and 
while  the  same  was  so  depending,  and  before  the  making  of  the 
said  promise  of  the  defendant,  was  about  to  leave  England  and 
proceed  to  parts  beyond  the  seas,  to  wit,  to  Halifax,  in  North 
America,  and  the  said  C.  J.  Dunlop  had  been  arrested,  and  was 
then  in  the  custody  of  the  Slieriff  of  Lancashire,  at  the  suit  of 
the  said  plaintiffs,  under  and  by  virtue  of  a  writ  of  our  Lady  the 
Queen,  called  a  capias,  duly  issued  in  the  said  action  by  the 
plaintiffs  against  the  said  C.  J.  Dunlop,  according  to  the  statute 
in  that  case  made  and  provided,  out  of  the  said  Court  of  our 
Lady  the  Queen  before  the  Barons  of  the  Exchequer  at  West- 
minster, and  directed  to  the  Chancellor  of  the  county  palatine 
of  Lancaster,  or  his  deputy  there,  and  of  a  certain  mandate 
duly  issued  by  the  said  Chancellor  on  the  said  writ  of  capias, 
and  directed  to  the  said  Sheriff  of  Lancashire,  and  which  sai.i 
writ  of  capias  and  mandate  respectively,  in  pursuance  cf  an 
order  of  the  Hon.  Sir  John  Gurney,  knight,  one  of  the  Barons 
of  her  Majesty's  said  Court  of  Exchequer  at  Westminster,  bear- 
ing date,,  to  wit,  on  April  15th,  1844,  were  and  eacli  of  them 
was  duly  marked  and  endorsed  for  bail  for  the  sum  of  S6g  ; 
and  whereas  costs  and  charges  to  a  certain  amount,  to  wit,  t>> 
the  amount  of  ^20,  at  the  time  of  the  making  of  the  said  prom- 
ise of  the  defendant,  had  been  incurred  by  the  plaintiffs  in  and 
about  the  prosecution  of  the  said  action,  and  the  arrest  of  the 
said    C.    J.    Dunlop  ;    and   thereupon    theretofore,    to    wit,    on 


SEC.  11^.]  SMITH    ANT)    ANOTHER   i:    yU  >y,lVATU.  495 

April  19th,  1S44,  in  consideration  that  the  plaintifls,  at  the  re- 
quest of  the  defendant,  would  discharge  the  said  C.  J.  Dunlop 
out  of  the  custody  of  the  said  SherilY  of  Lancashire  as  to  the 
said  action,  the  defendant  undertook  and  promised  tlie  plain- 
tiffs to  pay  to  them  the  sum  of  ;!^S8,  for  the  debt,  interest,  costs, 
and  charges  of  the  plaintiffs  in  the  said  action  brought  by  the 
plaintiffs  against  the  said  C.  J.  Dunlop  when  he,  the  defendant, 
should  be  thereunto  afterward  requested.  The  declaration 
then  averred  that  the  plaintiffs,  confiding  in  the  said  promise  of 
the  defendant,  did  then  discharge  the  said  C.  J.  Dunlop  out  of 
the  custody  of  the  said  sheriff  as  to  the  said  action,  whereof  the 
defendant  afterward,  to  wit,  on  the  day  and  year  last  aforesaid, 
had  notice,  and  was  then  requested  by  the  plaintiffs  to  pay  to 
them  the  said  sum  of  ;i^8S,  for  the  debt,  interest,  costs,  and 
charges  aforesaid  ;  yet  the  defendant  has  disregarded  his  said 
promise  and  undertaking  in  this,  to  wit,  that  he  did  not  then, 
or  at  any  other  time,  pay  to  the  said  plaintiffs  the  said  sum  of 
^8S,  or  any  part  thereof,  and  the  said  sum  of  ^88  remains 
wholly  due  and  unpaid  to  the  plaintiffs. 

Plea,  that  the  said  C.  J.  Dunlop  was  sued,  arrested,  and  de- 
tained in  custody,  as  in  the  declaration  mentioned,  and  until 
the  discharge  from  custody  therein  mentioned,  by  the  procure- 
ment of  the  plaintiffs,  and  not  otherwise  ;  and  the  defendant 
further  says,  that  there  was  not,  at  the  time  of  commencing  the 
said  action  against  the  said  C.  J.  Dunlop,  nor  during  the  time 
of  the  prosecution  thereof,  or  any  part  of  the  said  time,  nor  at 
the  time  of  arresting  the  said  C.  J.  Dunlop,  nor  during  any  part 
of  the  time  in  which  he  was  detained  in  custody,  as  in  the  dec- 
laration mentioned,  nor  at  the  time  of  the  making  of  the  under- 
taking and  promise  by  the  defendant,  as  in  the  declaration  men- 
tioned, auj  claim  or  demand  or  cause  of  action,  against  the  said 
C.  J.  Dunlop,  in  respect  whereof  the  plaintiffs  could  or  were 
entitled  to  recover  in  the  said  action  against  the  said  C.  J.  Dun- 
lop the  said  sum  which  the  defendant  so  promised  to  pay,  or 
any  other  sum  or  sums,  matter  or  thing  ;  and  the  plaintiffs  did 
not,  by  discharging  the  said  C.  J.  Dunlop  from  custody,  as  in 
the  said  first  count  mentioned,  give  up  or  part  with  any  avail- 
able remedy  against  the  said  C.  J.  Dunlop,  as  the  plaintiffs,  at 
the  time  of  commencing  and  prosecuting  the  said  action  against 
the  said  C.  J.  Dunlop,  and  at  the  time  of  procuring  his  arrest 
and  of  his  being  arrested  and  detained  in  custody,  and  at  the 
time  of  the  said  undertaking  and  promise  of  the  defendant  in 
the  declaration  mentioned,  well  knew  ;  but  which  the  defend- 
ant, at  the  time  of  making  the  said  undertaking  and  promise, 
did  not  know  ;  and  the  defendant  says,  that  the  said  writ  in  the 


496  SMITH   AND   ANOTHER   V.    MONTEITH.  [CHAP.  I. 

declaration  mentioned,  and  the  said  arrest  and  detaining  in 
custody,  and  proceedings  in  the  said  action  in  the  said  declara- 
tion mentioned,  were  on  the  part  of  the  plaintiffs  colorable  only, 
and  the  same  were  not  procured,  commenced,  or  prosecuted  by 
the  plaintiffs  for  the  purpose  or  with  the  intent  of  trying  any 
doubtful  or  contested  question  of  law  or  fact.     Verification. 

Special  demurrer,  assigning  for  causes,  among  others,  that 
the  plea  does  not  in  any  manner  answer  the  declaration  ;  that 
it  neither  traverses  any  allegation  therein,  nor  confesses  and 
avoids  the  cause  of  action  therein  stated  ;  that  the  contract  of 
the  defendant  stated  in  the  declaration  is  an  original  contract, 
founded  on  a  new  consideration,  altogether  distinct  and  differ- 
ent from  the  cause  of  action  against  the  said  C.  J.  Dunlop,  such 
consideration  for  the  defendant's  promise  being  an  act  done  by 
the  plaintiffs  for  the  benefit  of  the  said  C.  J.  Dunlop,  at  the 
request  of  the  defendant,  and  such  benefit  to  the  said  C.  J. 
Dunlop  being  precisely  the  same  whether  the  plaintiffs  had  or 
had  not  any  cause  of  action  against  him  ;  and  therefore  the 
question,  whether  the  plaintiffs  had  any  cause  of  action  against 
the  said  C.  J.  Dunlop  is  in  this  action  wholly  immaterial. 

The  plaintiffs'  points  marked  for  argument  were  that  the  plea 
is  bad  in  substance,  and  is  no  answer  to  the  declaration.  The 
consideration  alleged  is  the  discharge  of  Dunlop  out  of  custody 
of  the  sheriff  at  the  request  of  the  defendant,  which  discharge 
was  a  benefit  to  Dunlop,  which  he  could  not  have  obtained 
without  the  act  of  the  plaintiffs  in  giving  the  discharge  to  the 
sheriff,  whether  the  plaintiffs  could  have  proved  their  debt 
against  Dunlop  or  not,  and  which  discharge  materially  altered 
the  situation  of  the  plaintiffs  by  allowing  Dunlop  to  leave  the 
kingdom.  And  therefore  the  question  as  to  whether  there  was 
another  and  what  distinct  consideration,  not  alleged  in  the 
declaration,  is  in  this  action  immaterial.  The  plaintiffs  will  also 
contend  that  the  plea,  if  it  amounts  to  anything,  is  an  argu- 
mentative denial  of  there  being  any  consideration  for  the  prom- 
ise of  the  defendant,  and  is  therefore  bad  as  amounting  to  the 
general  issue.  Also  that,  supposing  the  want  of  consideration 
for  the  promise  may  be  specially  pleaded,  the  plea  is  bad,  be- 
cause it  negatives  one  particular  species  of  consideration  only 
— namely,  that  of  damage  to  the  plaintiffs,  whereas  damage  to 
the  plaintiffs  is  not  alleged  in  the  declaration  ;  and  it  is  quite 
consistent  with  the  plea  that  there  was  a  good  consideration  for 
the  promise,  either  by  benefit  to  Dunlop  at  the  request  of  the 
defendant,  which  in  fact  there  was,  or  benefit  to  the  defendant 
himself.  Also  that  the  plea,  consisting  of  matter  in  denial  only, 
ought  not  to  have  concluded  with  a  verification.     Also  that  the 


SEC.  11^.]  SMITH   AND   ANOTHER  V.   MONTEITH.  497 

plea  is  double  in  alleging  that  there  was  no  debt  due  from 
Dunlop,  and  that  the  arrest  was  colorable  only,  such  defences 
being  separate  and  distinct,  which  cannot  both  be  put  in  issue 
without  rendering  the  replication  double.  And,  lastly,  that 
the  plea  contains  no  matter  upon  which  any  material  issue  can 
be  taken.* 

The  defendant's  points  were  that  the  declaration  is  insuffi- 
cient and  bad  ;  that  it  does  not  disclose  any  sufficient  consider- 
ation to  support  the  action  ;  that  it  is  not  alleged  therein  that 
there  was  a  good  cause  of  action  or  a  doubtful  claim  on  which 
the  action  mentioned  in  the  declaration  was  founded,  or  that 
the  plaintiffs  had  any  right  to  continue  Dunlop  in  custody  ;  and 
that  it  is  not  shown  that  the  plaintiffs  sustained  any  damage  by 
his  discharge  from  custody. 

Crompton  in  support  of  the  demurrer. 

Peacock,  contra. 

Cro77ipton  in  reply. 

Pollock,  C.B.  I  am  of  opinion  that  the  plaintiffs  are  entitled 
to  the  judgment  of  the  Court.  This  is  an  action  against  the 
defendant,  founded  on  a  promise  by  him  to  pay  a  sum  of  money, 
in  consideration  of  the  discharge  out  of  custody  of  a  defendant 
in  a  former  action,  who  had  been  arrested  at  the  suit  of  the 
plaintiffs.  For  aught  that  appears  that  arrest  was  legal,  and 
the  party  was  in  lawful  custody  ;  this  is  not,  therefore,  a  case 
of  duress  ;  neither  can  it  be  put  as  a  case  oi  fraud,  for  there  is 
no  sufficient  allegation  of  fraud  in  any  part  of  the  plea.  The 
substance  of  the  plea  is  that  there  was  not  any  claim  or  demand 
or  cause  of  action,  in  respect  of  which  the  plaintiffs  were  en- 
titled to  sue  the  defendant  in  the  former  action  ;  but  there  is 
no  averment  that  the  plaintiffs  were  aware  of  that  ;  and  for 
anything  that  is  stated  in  the  plea,  the  original  inception  of 
that  action  was  perfectly  bond  fide,  although  the  plaintiffs  may 
have  been  mistaken  as  to  their  remedy  or  the  form  of  proceed- 
ings adopted  by  them.  The  plea  goes  on  to  state,  that  the 
plaintiffs  did  not,  by  discharging  Dunlop,  give  up  or  part  with 
any  available  remedy  against  him.  The  words  "available 
remedy"  are  rather  loose  and  vague  ;  they  may  mean  several 
things  ;  they  would  be  satisfied  by  the  fact  of  Dunlop  being  a 
mere  pauper,  for  it  is  not  stated  that  the  plaintiffs  had  no  legal 
right  or  remedy  which  they  gave  up,  but  merely  that  they  had 
no  available  remedy.  So  also  those  words  would  be  satisfied  if 
there  were  some  latent  defect  which  might  appear  in  pleading 
or  come  out  in  evidence  ;  yet  the  action  might  be  honestly  com- 
menced, and  the  claim  founded  in  justice  ;  and  it  cannot  be 
said  that,  because  the  proceedings  were  open  to  such  latent  de- 


498  SMITH   AND   ANOTHER   V.    MONTEITH.  [CHAP.  I. 

feet,  the  defendant's  promise  would  not  be  founded  on  a  good 
consideration.  And  this  is  the  only  part  of  the  plea  as  to  which 
there  is  any  averment  of  the  plaintiff's  knowledge.  It  then  goes 
on  to  say  that  the  action  against  Dunlop  was  not  brought  for 
the  purpose  of  trying  any  doubtful  or  contested  right.  It  seems 
to  me  that  the  declaration  in  its  form  calls  for  an  answer,  and 
that  this  plea  is  no  sufficient  answer.  I  agree  with  the  general 
scope  of  Mr.  Peacock's  argument.  If  a  party  does  an  illegal 
act,  or  if  he  abuses  the  process  of  the  Court  to  make  it  the  in- 
strument of  oppression  or  extortion,  that  is  a  fraud  on  the  law  ; 
and  if  the  original  arrest,  or  the  continuance  of  that  arrest,  were 
of  that  character,  arid  were  shown  to  be  so  by  proper  averments 
in  the  plea,  that  would  very  probably  constitute  a  good  defence 
to  an  action  like  the  present.  But  this  plea  falls  far  short  of 
that,  the  arrest  being  legal,  and  there  being  no  averment  of 
knowledge  on  the  part  of  the  plaintiffs  except  that  they  knew 
they  did  not  part  with  any  available  remedy  by  discharging 
Dunlop  out  of  custody.  It  does  not,  therefore,  contain  a  suffi- 
cient statement  in  fact  to  bring  it  within  the  scope  of  Mr.  Pea- 
cock's argument  or  the  cases  cited  by  him.  The  judgment 
must  therefore  be  for  the  plaintiffs. 

Parke,  B.  I  am  also  of  opinion  that  the  plaintiffs  are  entitled 
to  judgment.  In  the  first  place,  I  think  that  the  declaration  is 
sufficient  on  general  demurrer.  It  states  that  an  action  had 
been  brought  and  was  depending  at  the  suit  of  the  plaintiffs 
against  a  person  of  the  name  of  Dunlop,  and  that  he  had  been 
arrested  and  was  in  custody  on  a  capias  duly  issued  in  that 
action.  On  such  a  statement,  it  must  be  intended, /r/w^^/aaV, 
that  the  action  was  well  founded,  and  the  writ  regularly  and 
properly  issued.  That  doctrine  is  laid  down  in  the  case  of  Bid- 
well  V.  Catton,  Hob.  216.  That  was  an  action  of  assumpsit  on 
a  promise  by  the  defendant  to  pay  ^S°  ^"^  consideration  of  the 
plaintiff's  forbearing  to  prosecute  a  suit  ;  and  after  verdict  it 
was  objected  in  arrest  of  judgment,  first,  that  it  was  not  alleged 
that  the  plaintiff  had  any  just  cause  of  action,  and,  secondly, 
that  the  action  still  remained.  But  the  Court  nevertheless  gave 
judgment  ;  "  for,  first,  suits  are  not  presumed  causeless,  and 
the  promise  argues  cause,  in  that  he  desired  to  stay  off  the 
suit  ;  secondly,  though  this  did  not  require  a  discharge  of  the 
action,  yet  it  requires  a  loss  of  the  writ  and  a  delay  of  the  suit, 
which  was  both  benefit  to  the  one  and  loss  to  the  other." 
Therefore  I  think,  primd  facie,  this  declaration  is  sufficient,  the 
former  action  being  presumed  to  be  for  cause,  and  the  capias 
being  presumed  to  have  been  properly  issued.  There  is  another 
case  which  I  may  advert  to,  to  the  same  effect,  of   Pooley  v. 


SEC.  II^.J  SMITH    AND   ANOTHER   V.    MONTEITH,  499 

Lady  Gilberd,  2  Bulstr.  41.  There  it  is  stated  that  "  the  plain- 
tiff had  preferred  a  bill  in  Cliancery  against  the  defendant  for 
marriage-money  by  her  received.  The  defendant  upon  this,  in 
consideration  that  the  plaintiff  would  stay  the  suit  there  by  him 
commenced,  did  assume  to  pay  him  ^^loo,  and  also  to  deliver 
up  a  bond  of  ;!^4o  which  she  had.  Upon  this  promise  the  plain- 
tiff made  stay  of  his  suit,  but  the  defendant  not  performing  the 
promise,  upon  this  the  action  was  brought,  and  a  verdict  found 
for  the  plaintiff.  It  was  moved  for  the  defendant,  in  arrest  of 
judgment,  that  the  declaration  was  not  good,  for  that  there  was 
no  good  ground  to  raise  the  promise,  there  being  no  sufficient 
consideration  for  the  same,  for  it  doth  not  appear  in  the  decla- 
ration that  the  suit  in  Chancery  was  a  lawful  suit  to  be  there 
determined,  and  so  if  the  suit  was  not  lawful,  the  consideration 
to  forbear  such  a  suit  was  no  good  consideration  to  raise  a 
promise."  But  the  Court  say  that  "  if  the  plaintiff  had  only  a 
subpoena  out  of  Chancery  against  the  defendant,  and  did  not 
make  the  cause  thereof  known  to  him — if  he,  in  consideration 
that  he  would  not  prosecute  any  further  against  him,  did  assume 
to  pay  him  so  much,  this  clearly  is  a  good  consideration  to  raise 
a  piomise."  Upon  these  authorities  and  upon  principle  this 
declaration  is  sufficient 

Then  the  question  is  whether  the  plea,  which  must  be  con- 
strued most  strongly  against  the  defendant,  discloses  any  an- 
swer. I  agree  with  Mr.  Crompton,  that  it  is  difficult  to  see 
upon  what  principle  the  plea  is  constructed.  No  doubt  it  shows 
2i.  prima  facie  case  of  hardship  and  injustice  upon  the  defendant 
in  the  former  action,  but  the  question  is  whether  it  discloses  a 
legal  defence  to  this  action.  It  does  not  show  that  the  arrest 
was  illegal ;  and  it  certainly  is  not  sufficient  on  the  ground  of 
fraud,  because  there  is  no  averment  of  any  false  statement  or 
misrepresentation  of  fact  in  order  to  procure  the  arrest  ;  still 
less  does  it  disclose  any  ground  of  duress,  since  all  the  aver- 
ments show  that  the  imprisonment  was  lawful.  If  it  be  good 
at  all,  it  must  be  on  the  ground  of  want  of  consideration  for  the 
defendant's  promise.  Now  it  seems  to  me  that  the  plea  does 
not  disclose  sufficient  matter  to  show  a  want  of  consideration. 
Taking  it  most  strongly  against  the  defendant,  in  substance  it 
is  no  more  than  this,  that  the  plaintiffs  had  no  claim  or  cause 
of  action  which  could  have  been  enforced  against  Dunlop  ;  but 
it  does  not  allege  that  the  plaintiffs  knew  that  fact.  It  must  be 
taken,  therefore,  that  the  capias  on  which  Dunlop  was  arrested 
was  regularly  and  duly  obtained  ;  and  the  plea  does  not  show 
that  the  plaintiffs  were  guilty  of  any  illegal  conduct,  that  they 
acted  illegally  in  making  the  arrest,  or  from  malicious  motives, 


500  TOLHURST   et  al.   V.    POWERS.  [cHAP.  I. 

or  that  the  arrest  was  without  reasonable  or  probable  cause. 
Dunlop,  therefore,  as  it  must  be  assumed,  was  in  custody  at 
the  suit  of  the  plaintiffs,  under  process  which  was  legal  and 
regular  ;  and  that  being  so,  the  discharge  from  such  an  arrest 
is  quite  a  sufficient  consideration  to  support  the  promise  laid  in 
this  declaration  ;  and  I  entirely  agree  that  we  cannot  inquire 
into  the  quantum  or  amount  of  consideration.  Upon  the  face  of 
the  plea,  therefore,  there  was  a  legal  arrest,  and  the  discharge 
from  that  arrest,  under  which  the  payment  of  the  debt  might 
have  been  obtained,  was  a  benefit  to  Dunlop,  quite  sufficient  to 
found  a  consideration  for  a  promise  to  pay  that  debt.  For 
these  reasons  I  am  of  opinion  that  the  plea  furnishes  no  sufficient 
answer  to  the  declaration,  and  that  our  judgments  must  be  for 
the  plaintiffs. 

GuRNEY,  B.  I  am  of  the  same  opinion.  To  make  the  plea  a 
sufficient  answer  it  ought  to  have  shown,  either  that  the  plain- 
tiffs acted  illegally  or  fraudulently  in  making  the  arrest  or  that 
they  practised  some  fraud  on  the  defendant.  It  shows  neither, 
and  therefore  is  no  sufficient  answer. 

Judgment  for  the  plaintiffs. 


WILLIAM    H.   TOLHURST  et  al.,  Appellants,  v. 
JOSEPH    A.   POWERS,   Respondent. 

In  the  Court  of  Appeals  of  New  York,  June  7,  1892. 

[Reported  in  133  Netv  York  Reports  460.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  third  judicial  department,  entered  upon  an  order 
made  July  nth,  1891,  which  affirmed  a  judgment  in  favor  of  de- 
fendant, entered  upon  the  report  of  a  referee. 

This  action  was  brought  to  recover  a  balance  of  an  account 
originally  due  plaintiffs  from  one  Clinton  M.  Ball  for  services 
in  the  construction  and  fitting  of  a  dynamo  and  other  electrical 
appliances,  which  it  was  claimed   defendant  had  agreed  to  pay. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Nelson  Davenport  for  appellants. 

Frank  S.  Black  for  respondent. 

Finch,  J.  We  agree  with  the  prevailing  opinion  of  the  Gen- 
eral Term  that  there  was  no  consideration  to  support  the  prom- 
ise of  Powers  to  pay  Ball's  debt  to  the  plaintiffs.  The  latter 
originally  constructed  a  dynamo,  for  which  Ball  became  indebted 
to  them,  and  after  all  payments  he  remained  so  indebted  when 


SEC.  II<?.]  TOLHURST    Ct   ClL    V.    TOWERS.  5OI 

the  machine  was  ready  for  delivery.  The  builders,  of  course, 
had  a  lien  upon  it  for  the  unpaid  balance,  but  waived  and  lost 
their  lien  by  a  delivery  to  Ball  without  payment.  lie,  being 
then  the  owner  and  holding  the  title  free  from  any  incumbrance, 
sold  the  dynamo  to  Crane  on  a  contract  apparently  contingent 
upon  the  successful  working  of  the  machine.  It  did  not  work 
successfully,  and  was  sent  back  to  plaintiffs  to  be  altered  with 
a  view  of  correcting  its  imperfections.  At  this  point  occurred 
the  first  intervention  of  the  defendant  Powers.  He  had  not 
then  obtained,  so  far  as  the  case  shows,  any  interest  in  the 
machine,  and  the  complete  title  was  either  in  Crane  or  Ball  or 
in  both  ;  but  when  the  plaintiffs  hesitated  about  entering  upon 
the  new  work  until  their  charges  for  it  should  be  made  secure, 
Powers  agreed  to  pay  them.  The  true  character  of  that  prom- 
ise is  immaterial,  for  when  the  work  was  done  Powers  did  pay 
according  to  his  contract.  Thereafter  Ball  and  Powers  requir- 
ing a  delivery  of  the  dynamo,  the  plaintiffs  undertook  or  threat- 
ened to  retain  the  possession  till  the  original  debt  should  be 
paid.  That  they  had  no  right  to  do.  Their  primary  lien  was 
lost  by  the  delivery,  and  they  acquired  no  new  one  by  reason  of 
the  repairs  which  were  paid  for.  Such  refusal  to  surrender  the 
possession  was  an  absolute  wrong  without  any  color  of  right 
about  it.  After  demand  their  refusal  was  a  trespass,  and  ac- 
cording to  their  own  evidence  the  sole  consideration  for  the 
promise  which  they  claim  that  Powers  made  to  pay  the  old 
debt  of  Ball  was  their  surrender  of  possession.  To  that  they 
were  already  bound,  and  parted  with  nothing  by  the  surrender. 
They  gave  up  no  right  which  they  had  against  any  one,  but  ex- 
torted the  promise  by  a  threat  of  what  would  have  been,  if  exe- 
cuted, a  wrongful  conversion.  Doing  what  they  were  already 
bound  to  do  furnished  no  consideration  for  the  promise. 

It  is  said,  however,  that  Ball  made  no  demand,  and  until  he 
did  the  plaintiffs  were  not  bound  to  deliver  the  possession,  and 
that  the  delivery  was  to  Powers  and  not  to  Ball.  But  there  was 
certainly  a  request  to  ship  the  machine,  and  so  part  with  the 
possession,  and  both  the  request  and  the  shipment  were  with 
the  concurrence  of  Ball.  It  was  that  very  request  that  brought 
up  the  subject  of  the  old  debt,  and  Ball  stood  by,  plainly  assent- 
ing, at  least  by  omitting  any  dissent  or  objection.  The  ship- 
ment to  Powers  by  name  made  it  none  the  less  a  delivery  to 
Ball,  whose  concurrence  is  explicitly  found.  Surely,  after  what 
happened,  the  latter  could  not  have  maintained  an  action  for 
conversion  on  the  ground  that  there  had  been  no  delivery  to 
him.  The  undisputed  fact  is  that  the  plaintiffs  were  seeking  to 
withhold  a  delivery  to  the  owner  without  the  least  right  of  re- 


502  ENGLAND   V.   DAVIDSON.  [CHAP.  I. 

fusal.  There  was  no  harm  to  plaintiffs  and  no  benefit  conferred 
on  Powers.  The  former  parted  with  nothing  of  their  own,  and 
the  latter  gained  nothing,  for  the  shipment  to  him  was  a  deliv- 
ery to  Ball,  the  owner,  since  made  with  his  concurrence,  and 
Powers  obtained  no  right  or  interest  in  the  property  as  the  re- 
sult of  the  delivery.  He  simply  took  it,  if  he  took  at  all,  which 
is  doubtful,  as  the  agent  or  bailee  of  the  owner,  and  acquired 
no  rio-ht  in  it  until  a  later  period.  Until  the  mortgage  made 
subsequently,  his  advances  for  repairs  constituted  only  an  un- 
secured debt  against  Ball.  The  turning-point  of  the  appellant's 
argument  is  the  unwarranted  assumption  that  the  plaintiffs 
agreed  to  deliver,  and  did  deliver,  the  dynamo  to  one  whom 
they  knew  not  to  be  the  owner  without  the  assent  of  Ball,  who 
was  the  ov/ner,  but  who,  nevertheless,  stood  by  and  made  no 
objection.  No  fair  construction  of  the  evidence  will  sustain  the 
appellant's  theory. 

The  judgment  should  be  affirmed  with  costs. 

All  concur. 

Judgment  affirmed. 


ENGLAND  v.   DAVIDSON. 

In  the  Queen's  Bench,  May  5,  1840. 

[Reported  in  11  Adolphus  &=  Ellis  856.] 

Assumpsit.  The  declaration  stated  that  heretofore,  to  wit, 
etc.,  the  defendant  caused  to  be  published  a  certain  handbill, 
placard,  or  advertisement,  headed  "  Fifty  pounds  reward  ;" 
whereby,  after  reciting  that,  late  on  the  night  of,  etc.,  the  man- 
sion house  of  defendant,  at,  etc.,  was  feloniously  entered  by 
three  men,  who  effected  their  escape,  that  two  men  had  been 
taken  into  custody  on  suspicion  of  having  been  concerned  in 
the  felony,  and  that  a  third,  supposed  to  belong  to  the  gang, 
had  been  traced  to  Carlisle,  and  was  of  the  following  descrip- 
tion, etc.,  the  defendant  did  promise  and  undertake  that  who- 
ever would  give  such  information  as  should  lead  to  the  convic- 
tion of  the  offender  or  offenders  should  receive  the  above  re- 
ward ;  that  plaintiff,  confiding,  etc.,  did  afterward,  to  wit,  on, 
etc.,  give  such  information  as  led  to  the  conviction  of  one  of  the 
said  offenders,  to  wit,  one  David  Robson  ;  and  that  afterward, 
to  wit,  at  the  assizes  for  Northumberland,  David  Robson,  who 
was  guilty  of  the  said  offence,  to  wit,  the  feloniously  entering, 
etc.,  was  in  due  course  of  law  convicted  of  the  said  offence  of 


SEC.  11^.]  ENGLAND   Z>.    DAVIDSON.  503 

feloniously  entering,  etc.,  in  consequence  of  such  information 
so  given  by  plaintiff  ;  of  all  which  said  several  premises  defend- 
ant afterward,  to  wit,  on,  etc.,  had  notice,  and  was  then  re- 
quested by  plaintiff  to  pay  him  the  said  sum  of  ;£s°  I  ^"<^  de- 
fendant afterward,  to  wit,  on,  etc.,  in  consideration  of  tlie 
premises,  then  promised  plaintiff  to  pay  him  the  sum  of  ^50  ; 
breach,  that,  although  defendant,  in  part  performance  of  his 
said  promise  and  undertaking,  to  wit,  on,  etc.,  did  pay  to  plain- 
tiff the  sum  of  ^^5  55-.,  in  part  payment  of  the  said  sum  of  ^^50, 
yet,  etc.  (breach,  non-payment  of  the  residue). 

Third  plea.  That  heretofore,  and  long  before  and  at  the 
time  when  the  house  of  defendant  was  so  feloniously  entered, 
and  continually  from  thence  hitherto,  plaintiff  was,  and  now  is, 
a  constable  and  police  officer  of  the  district  where  the  said 
house  of  defendant  is  situate  and  the  said  offence  was  com- 
mitted ;  and  it  then  was  the  duty  of  plaintiff,  as  such  constable 
and  police  officer,  to  have  given,  and  to  give,  every  information 
which  might  lead  to  the  conviction  of  the  said  offender,  and  to 
apprehend  him  and  prosecute  him  to  conviction,  if  guilty,  with- 
out any  payment  or  reward  to  him  made  in  that  behalf  ;  that, 
by  the  said  advertisement  partly  set  out  in  the  declaration, 
defendant  gave  notice  and  promised  that  whoever  would  give 
such  information  to  plaintiff,  therein  described  as  police  officer, 
Hexham,  as  should  lead  to  the  conviction  of  the  offender  or 
offenders,  should  receive  the  said  reward  in  the  said  advertise- 
ment mentioned,  and  in  no  other  manner  whatever  ;  and  that, 
by  reason  of  the  premises,  the  said  promise  was  and  is  void  in 
law.     Verification. 

Demurrer,  assigning  for  causes  that  the  plea  amounts  to  the 
'general  issue,  and  does  not  deny,  or  confess  and  avoid,  and  is 
multifarious,  and  tenders  an  immaterial  issue.     Joinder. 

Ingham  now  appeared  for  the  plaintiff,  but  the  Court  called  on 

Martin  for  the  defendant. 

Denman,  C.J.  I  think  there  may  be  services  which  the  con- 
stable is  not  bound  to  render,  and  which  he  may  therefore  make 
the  ground  of  a  contract.  We  should  not  hold  a  contract  to  be 
against  the  policy  of  the  law,  unless  the  grounds  for  so  decid- 
ing were  very  clear. 

LiTTLEDALE,  Patteson,  and  Coleridge,  JJ.,  concurred 

Judgment  for  the  defendant. 


^04  GILLMORE   V.    LEWIS.  [CHAP.  I. 

GEORGE   GILLMORE  v.  DANIEL   LEWIS. 

In  the  Supreme  Court  of  Ohio,  December  Term,  1843. 

[Reported  in  12  Ohio  Reports  281.] 

This  was  an  action  of  assumpsit  from  the  county  of  Fairfield. 

The  declaration  in  this  case  contains  but  a  single  special 
count,  in  which  the  plaintiff  declares  that,  heretofore,  to  wit, 
etc.,  the  defendant  and  one  Brooke,  not  served  with  process, 
printed,  published,  and  circulated  a  certain  advertisement,  that 
their  store  had  been  broken  open,  and  about  $700  in  money 
Stolen  therefrom  ;  and  by  the  said  handbill  or  advertisement, 
the  said  defendant  and  the  said  Brooke,  under  the  name  and 
style  of  Brooke  &  Lewis,  did  then  and  there  promise,  and  un- 
dertake, to  pay  the  sum  of  $300  to  any  person  or  persons  who 
would  apprehend  the  aforesaid  thief  and  money,  or  $200  for  the 
cash  alone,  and  $100  for  the  thief  alone. 

The  plaintiff  avers  that  afterward,  to  wit,  etc.,  confiding  in 
the  said  promises  and  undertakings,  he  sought  out,  and  discov- 
ered that  one  James  Nelson  was  the  thief  ;  and  to  effect  his 
arrest  for  the  commission  of  the  crime  he  applied  to  a  justice 
of  the  peace,  made  oath  to  the  fact,  and  obtained  a  warrant, 
which  was  delivered  to  the  plaintiff,  he  being  one  of  the  acting 
constables  of  Walnut  township  in  said  county  ;  and  the  plaintiff 
afterward,  by  virtue  of  said  warrant,  arrested  the  said  Nelson, 
who  was  duly  convicted  and  the  money  restored  to  defendant 
and  Brooke,  of  which  premises  the  defendant  and  Brooke  had 
notice,  and  thereby  became  liable,  and  promised,  etc. 

To  this  declaration  the  defendant  demurred  generally,  and 
asks  the  judgment  of  the  Court  whether  the  case  made  entitles 
the  plaintiff  to  judgment. 

If.  If.  Hunter  and'ZT.  Stanbery  in  support  of  the  demurrer. 

John  T.  Brazee  6^  T.  Ewing  for  plaintiff,  contra. 

Wood,  J.  No  doubt  is  entertained  by  us,  as  a  general  rule, 
that  the  detection,  arrest,  and  conviction  of  a  felon,  or  the  dis- 
covery and  seizure,  or  return  of  stolen  property,  is  a  good  con- 
sideration to  sustain  a  promise  made  on  such  condition.  When 
the  condition  is  complied  with,  he  who  performs  it  becomes  the 
promisee  ;  the  contract  is  then  complete  and  executed  on  his 
part  ;  the'legal  interest  is  vested  in  him,  and  he  has  the  right 
to  claim  the  reward  as  the  benefit  of  his  exertion. 

So  long  as  the  administration  of  criminal  justice  is  necessary 
to  secure  the  peace  and  safety  of  society,  such  contracts  should 


SEC.  11^.]  GILLMORE   V.    LEWIS.  505 

be  regarded  with  a  favorable  eye.  They  often  stimulate  to  ex- 
ertion where  civil  duty  is  insufficient  in  obligation  to  ferret  out 
crime,  hunt  down  the  offender,  and  bring  him  to  public  justice. 
As  a  civil  duty,  every  individual  is  bound  to  use  reasonable  ex- 
ertion to  effect  the  punishment  of  crime  ;  but  the  law  imposes 
no  such  obligation  on  the  private  citizen,  unless  called  upon  for 
assistance  by  its  ministerial  officers  ;  and  an  offered  reward  is 
frequently  the  only  hope  of  remuneration  for  a  meritorious  ser- 
vice rendered  to  the  commonwealth. 

But  public  officers,  on  whom  the  law  casts  this  duty,  from 
whom  it  requires  exertion,  and  to  whom  it  affords  adequate 
compensation,  occupy  different  ground. 

It  is  an  indictable  offence  in  them  to  exact  and  receive  any- 
thing but  what  the  law  allows  for  the  performance  of  their  legal 
duties.  A  promise  to  pay  them  extra  compensation  is  abso- 
lutely void  under  the  statute  of  Ohio.  Such  promise  could  not 
be  enforced  at  common  law,  being  against  sound  policy  and 
quasi  extortion.  English  judges  have  declared  that  such  claims 
by  them  are  novel  in  courts  of  justice,  and  that  actions  founded 
on  such  promises  are  scandalous  and  shameful.  2  Burr.  924  ; 
and  in  the  Court  of  Errors  in  New  York  they  meet  with  no 
more  favor.      15  Wend.  Rep.  46. 

While  the  counsel  for  the  plaintiff  does  not  controvert  these 
principles,  their  application  to  the  case  at  bar  is  strenuously 
denied.  It  is  said  the  $300  is  not  claimed  for  executing  the 
writ  as  constable  by  the  plaintiff.  For  that  service  he  was  en- 
titled to  his  legal  fees,  without  any  regard  to  the  proceeding 
resulting  in  the  conviction  of  the  accused  and  the  return  of  the 
money,  and  that  this  official  act  of  his  neither  makes  his  claim 
to  the  reward  better  or  worse  than  it  would  have  been  had  the 
sime  official  act  been  done  by  some  other  official  personage. 

But  it  will  be  seen  that  this  view  of  the  case  can  by  no  means 
be  sustained.  It  is  not  the  case  made  by  the  declaration.  The 
promise  of  the  reward,  as  laid,  is  for  the  apprehension  of  the 
thief  and  money  ;  and  this  arrest  of  the  thief  and  seizure  of  the 
money  are  averred  to  have  been  made  by  the  plaintiff  by  virtue 
of  a  warrant  delivered  to  him  as  constable.  The  promise  is, 
therefore,  illegal  and  void.  True,  it  is  stated  the  plaintiff 
searched  out  the  thief  and  ascertained  where  the  money  was, 
and  made  the  oath  on  which  the  warrant  issued,  but  for  this 
service  no  promise  of  reward  is  laid.  It  is  for  the  apprehension 
of  the  thief  and  seizure  of  the  money,  and  as  this  was  done  in 
virtue  of  his  office,  the  plaintiff  must  be  content  with  his  legal 
fees  and  the  reflection  that  he  has  done  the  State  some  service. 

Demurrer  sustained,  and  judgment  for  defendant. 


5o6  REIF   V.    PAIGE.  [chap.  I. 

RETF  V.   PAIGE. 

In  the  Supreme  Court  of  Wisconsin,  October  io,  1882. 
\ Reported  in  55   Wisconsin  Reports  496.] 

Appeal  from  the  Circuit  Court  for  Winnebago  County. 

During  the  afternoon  of  December  3d,  1880,  a  hotel  in  the 
citv  of  Oshkosh,  known  as  the  "  Beck  with  House,"  was  de- 
stroyed by  fire.  The  defendant  and  his  wife  lived  in  this  hotel, 
occupying  rooms  in  the  fourth  story.  When  the  fire  broke  out 
Mrs.  Paige  was  in  those  rooms  and  perished  in  the  flames.  The 
members  of  the  Fire  Department  of  Oshkosh  placed  a  ladder 
at  a  window  near  where  Mrs.  Paige  was  supposed  to  be,  and  at 
least  two  firemen  attempted  to  enter  the  window  and  rescue 
her,  but  were  driven  back  by  the  smoke  and  flames.  The  lad- 
der was  then  removed,  but  subsequently  was  replaced  at  the 
same  window.  About  this  time,  and  after  the  fire  had  been 
raging  thirty  minutes  or  more,  the  defendant,  who  had  been 
absent,  reached  the  scene  of  the  fire,  and,  as  it  is  alleged  in  the 
complaint,  offered  and  promised  to  pay  a  reward  of  $5000  to 
any  person  who  would  rescue  his  wife  from  the  burning  build- 
ing, dead  or  alive.  The  plaintiff  claims  that  he  has  earned  the 
reward  thus  offered,  and  has  brought  this  action  to  recover  the 
same. 

The  complaint  alleges  that  the  plaintiff,  on  being  informed 
of  such  offer  and  promise,  and  confiding  in  and  relying  upon 
the  same,  entered  such  rooms  in  the  fourth  story  of  the  burning 
building,  at  great  peril  to  his  life  and  health,  removed  there- 
from the  dead  body  of  Mrs.  Paige,  and  delivered  the  same  to 
the  defendant.  Also  that  the  plaintiff  has  performed  all  of  the 
conditions  of  said  contract  on  his  part  to  be  performed  ;  that 
no  part  of  the  said  $5000  has  been  paid  to  him,  and  that  the 
same  is  now  due  and  payable. 

In  his  answer  the  defendant  denies  that  he  offered  any  reward 
for  the  rescue  of  his  wife  from  the  burning  building,  and  also 
denies  an  averment  in  the  complaint  that  the  Fire  Department 
was  unable  to  remove  her  therefrom.  He  alleges  therein  that 
the  body  of  his  wife  was  recovered  by  members  of  that  depart- 
ment ;  that  the  plaintiff  was  an  assistant  engineer  and  a  paid 
officer  in  that  department,  and  whatever  he  did  in  the  recovery 
and  removal  of  the  body  of  Mrs.  Paige  was  done  as  such  officer 
and  member  of  the  Fire  Department,  and  in  the  performance 
of  his  duties  as  such. 


SEC.  lU'.]  REIF  Z'.    PAIGE.  507 

The  testimony  on  the  trial  tended  to  prove  that  the  defendant 
offered  the  reward,  and  that  with  knowledge  of  the  offer  and 
on  the  faith  of  it,  and  for  the  purpose  of  earning  the  reward, 
the  plaintiff  ascended  the  ladder,  entered  the  building,  and 
rescued  the  dead  body  of  Mrs.  Paige  from  the  flames,  to  the 
knowledge  of  the  defendant.  No  formal  notice  was  given  by 
the  plaintiff  to  the  defendant  before  this  action  was  commenced, 
that  the  former  had  acted  in  the  premises  upon  such  offer,  and 
claimed  the  reward  ;  and  no  demand  therefor  was  made  upon 
the  defendant.  The  Circuit  Court  nonsuited  the  plaintiff,  and 
judgment  against  him  was  entered  accordingly.  The  plaintiff 
appealed  from  that  judgment. 

Finch  ^  Barber  and  Charles  W.  Felker  for  the  appellant,  and 
oral  argument  by  Barber. 

Gary  6^  Berry  and  Moses  Hooper  for  the  respondent,  and  oral 
argument  by  Hooper. 

Lyon,  J.  i.  It  is  maintained  on  behalf  of  the  defendant  that 
in  no  event  was  there  a  cause  of  action  against  him  until  after 
due  notice  to  him  that  the  plaintiff  had  rescued  the  body  of  his 
wife  from  the  flames,  with  knowledge  of  the  offer  of  a  reward 
for  so  doing,  and  on  the  faith  of  that  offer  ;  in  other  words, 
that  such  notice  is  a  condition  precedent  to  the  plaintiff's  right 
of  action.  If  this  position  is  correct,  the  performance  of  such 
condition  precedent  must  be  averred  in  the  complaint,  either 
specifically  or  by  authorized  general  averment,  and,  if  denied, 
must  be  proved  on  the  trial  or  the  plaintiff  cannot  recover.  The 
complaint  alleges  that  "  the  plaintiff  has  fully  performed  all  of 
the  conditions  of  said  contract  upon  his  part  to  be  performed." 
This  mode  of  pleading  performance  of  conditions  precedent  is 
authorized  by  statute,  and  hence  the  same  are  sufficiently 
pleaded.  R.  S.,  728,  §  2674.  The  answer  does  not  deny  that 
averment  of  the  complaint,  either  specifically  or  by  general  de- 
nial. Hence,  the  plaintiff  was  not  required  to  prove  the  aver- 
ment on  the  trial.  Moreover,  the  failure  to  give  such  notice 
(if  the  notice  was  required)  goes  only  in  abatement  of  the 
action,  and  it  may  well  be  doubted  whether  even  a  general 
denial  would  make  an  issue  on  the  question  as  to  whether  the 
notice  had  been  given.  It  would  seem  that,  regularly,  mere 
matter  in  abatement  of  an  action,  to  be  available,  should  be 
pleaded,  especially  when,  as  in  this  case,  such  matter  is  nega- 
tived in  the  complaint.  However,  the  point  is  not  here  deter- 
mined. But  inasmuch  as  the  defendant  introduced  evidence, 
without  objection,  tending  to  show  that  he  received  no  such 
notice  of  the  plaintiff's  acceptance  of  the  alleged  offer  of  a  re- 
ward, and  as  it  is  quite  competent  for  the  Court  to  permit  an 


5o8  REIF   V.    PAIGE.  [chap.  I. 

amendment  making  the  answer  correspond  with  the  proofs  in 
that  behalf,  it  becomes  our  duty  to  determine  the  question  of 
the  necessity  of  such  notice. 

The  offer  of  a  reward  by  the  defendant  for  rescuing  the  body 
of  his  wife,  and  the  rescue  of  her  remains  by  the  plaintiff,  with 
knowledge  of  such  offer,  and  with  a  view  to  obtaining  the  re- 
ward offered,  constituted  a  contract  between  the  parties,  which 
was  fully  and  completely  executed  by  the  plaintiff.  The  offer, 
which  the  proofs  tend  to  show  the  defendant  made,  was,  in  sub- 
stance, "  I  will  give  $5000  to  any  person  who  will  bring  the 
body  of  my  wife  out  of  that  building,  dead  or  alive."  There 
were  no  restrictions  or  limitations  to  the  offer,  and  no  addi- 
tional requirement  upon  the  claimant  of  the  offered  bounty. 
Hence,  when  the  plaintiff,  with  a  view  of  obtaining  the  offered 
reward,  rescued  the  body  of  Mrs.  Paige,  he  had  done  all  that 
the  offer  required  him  to  do,  and  if  he  has  any  cause  of  action 
it  was  then  complete.  There  may  be  a  conflict  of  authority  on 
this  question,  but  it  seems  to  us  that  the  better  reasons  are  with 
the  cases  cited  on  behalf  of  the  plaintiff,  holding  that  in  such  a 
case  the  giving  of  the  notice  is  not  a  prerequisite  to  maintaining 
an  action  for  the  reward.  The  soldiers'  bounty  cases  in  this 
Court,  cited  in  opposition  to  this  view,  are  not  in  point,  because 
in  those  cases  it  was  absolutely  necessary  that  the  towns  or 
municipalities  should  know  when  their  quotas  were  full.  Hence 
the  necessity  that  each  person  who  enlisted  for  the  bounty 
should  promptly  notify  the  proper  authorities  of  the  town  or 
city  to  which  he  was  credited  of  the  fact  of  his  enlistment.  No 
such  reason  exists  here  for  requiring  notice.  There  is  no  more 
hardship  in  this  rule  than  in  the  rule  which  allows  the  endorsee 
and  holder  of  an  overdue  negotiable  promissory  note  to  sue  the 
maker  thereon  without  giving  him  an  opportunity  to  pay  it 
without  suit.  The  maker  may  have  been  ready  and  anxious  to 
pay  it  at  the  time  it  became  due,  had  he  known  where  it  was. 
Yet  the  holder  may  sue  it  at  his  leisure,  and  compel  the  maker 
to  pay  costs,  and,  in  general,  the  accrued  interest  as  well. 
That  hardship  is  possible  because  the  contract  evidenced  by 
the  note  is  complete,  and  nothing  remains  to  be  done  by  the 
holder  after  the  note  becomes  due  to  give  him  a  right  of  action 
upon  it.  On  precisely  the  same  principles  we  think  in  this  case 
that  after  the  plaintiff  had  performed  the  only  condition  stipu- 
lated for  in  the  alleged  offer,  his  right  of  action  was  complete, 
without  doing  any  other  act  whatever. 

2.  The  learned  circuit  judge  nonsuited  the  plaintiff  on  the 
ground  that  it  was  his  duty  as  a  paid  officer  and  member  of  the 
Fire  Department  of  Oshkosh  to  rescue  persons  as  well  as  prop- 


SEC.  Ik-.]  REIF   V.    PAIGE.  509 

erty  from  fires,  and  that  it  is  against  sound  public  policy  to 
allow  him  to  contract  for  a  reward  for  recovering  the  body  of 
Mrs.  Paige.  Also  that  in  such  a  case  there  is  no  valid  consider- 
ation for  the  offer,  moving  from  one  whose  duty  it  is  to  do  the 
act.  The  learned  counsel  for  the  respective  parties  have  argued 
this  branch  of  the  case  (as  well  as  the  other),  with  great  candor 
and  ability,  and  each  has  cited  numerous  adjudications  in  sup- 
port of  his  theory  of  the  case.  Their  arguments  and  conces- 
sions have  brought  the  question  upon  which  the  case  must  turn 
within  very  narrow  limits.  Counsel  for  the  plaintiff  concedes 
that  if  it  was  the  duty  of  his  client  as  a  fireman  to  go  into  the 
burning  building  and  remove  therefrom  the  remains  of  Mrs. 
Paige,  he  cannot  recover  the  reward,  but  contends  that  it  was 
not  his  duty  to  do  so  under  the  circumstances  of  the  case. 
Counsel  for  the  defendant,  while  not  contending  that  it  was  the 
duty  of  the  plaintiff  as  a  fireman  to  imperil  his  life  by  going  into 
the  building  for  Mrs.  Paige,  or  that  the  act  was  not  a  very 
perilous  one,  maintains  that  it  was  in  the  nature  of  extra  or 
extra  hazardous  services  in  the  line  or  scope  of  his  duty,  and, 
being  so,  the  law  will  not  permit  him  to  contract  for  a  reward 
for  doing  the  act. 

There  was  considerable  discussion  by  counsel  as  to  what  are 
the  duties  of  firemen.  We  know  of  no  guide  for  ascertaining 
those  duties  other  than  the  charter  of  the  municipality  in  which 
they  are  employed,  and  the  ordinances  or  by-laws  enacted  pur- 
suant thereto.  The  ordinances  of  the  city  of  Oshkosh  in  respect 
to  its  Fire  Department  were  read  in  evidence,  and  reference 
made  to  the  city  charter  in  that  behalf.  We  do  not  care  to 
comment  upon  these,  for  we  are  clear  that  there  is  nothing  in 
them  which  made  it  the  duty  of  the  plaintiff  to  enter  the  fourth 
story  of  the  burning  building  and  rescue  the  body  of  Mrs.  Paige 
from  the  flames,  at  the  imminent  hazard  of  losing  his  own  life. 
That  he  incurred  such  hazard  there  can  be  no  doubt  from  the 
testimony.  He  did  not,  as  does  a  soldier,  contract  to  risk  his 
life  in  the  service.  The  most  that  can  reasonably  be  claimed  is 
that,  short  of  risking  his  life,  he  contracted  to  use  his  best  judg- 
ment and  efforts  in  extinguishing  fires,  and  in  saving  persons 
and  property  from  destruction  or  injury.  But  it  is  quite  doubt- 
ful whether  a  fireman  employed  under  the  charter  and  ordi- 
nances of  Oshkosh  owes  any  duty,  as  a  fireman,  to  rescue  persons 
from  burning  buildings.  Both  charter  and  ordinances  are 
silent  on  the  subject,  although  an  ordinance  requires  them  to 
aid  in  the  removal  of  endangered  goods  and  property.  It  may 
well  be  that  for  the  rescue  of  persons  in  peril  from  a  conflagra- 
tion   the    Legislature    or    Common    Council    relied    upon    the 


5IO  REIF   V.    PAIGE.  [chap.  i. 

promptings  of  humanity  which  in  such  emergencies  always  in- 
sures the  utmost  efforts  of  all  who  can  aid  therein,  whether  fire- 
men or  not,  to  save  the  lives  of  those  in  peril.  But  whether  a 
fireman  owes  any  such  duty  by  reason  of  his  employment  is  not 
here  determined.  We  assume,  for  the  purposes  of  this  case, 
that  he  does,  and  have  stated  above  the  limits  of  that  duty,  if 
it  exists. 

On  this  hypothesis,  the  precise  question  to  be  determined  is 
whether  the  fact  that  it  was  not,  under  the  circumstances,  the 
duty  of  plaintiff  as  a  fireman  to  rescue  the  body  of  Mrs.  Paige, 
renders  him  competent  to  make  a  valid  contract  for  a  reward 
for  so  doing.  It  is  difficult  to  perceive  how  it  can  properly  be 
said  that  it  was  within  the  scope  or  line  of  the  plaintiff's  duty 
to  do  the  act,  when  it  was  not  his  duty  to  do  it.  It  is  conceded, 
for  the  purposes  of  the  case,  that  it  was  his  duty  as  a  fireman 
to  rescue  Mrs.  Paige  from  the  flames  if  he  could  do  so  without 
hazarding  his  own  life.  It  was  not  his  duty  to  do  so  at  the 
hazard  of  his  life.  Can  it  properly  be  said  that  it  was  in  the 
line  or  scope  of  his  duty  to  rescue  her  at  the  imminent  peril  of 
losing  his  life,  when  his  duty  did  not  require  him  to  do  so  ? 
We  confess  our  inability  to  perceive  any  satisfactory  grounds 
upon  which  this  question  may  be  answered  affirmatively. 

In  the  law  of  agency  we  find  that  principals  are  often  held 
responsible  for  the  unauthorized  acts  of  their  agents  because 
such  acts  are  within  the  scope  of  the  authority  of  such  agents, 
although  not  within  their  actual  authority.  The  principal  is 
held  in  such  a  case  because  he  has  clothed  his  agent  with  appar- 
ent authority  to  do  the  act,  and  a  person  to  whom  the  agent  is 
accredited  may  deal  with  him  on  the  faith  that  he  has  the 
authority  to  bind  his  principal  which  he  appears  to  have,  and 
may  hold  the  principal  as  effectually  as  though  the  agent  had 
actual  authority  in  the  premises.  Hence,  when  it  is  said  that  a 
given  act  of  an  agent,  although  unauthorized,  is  within  the 
scope  of  his  authority,  and  therefore  binds  his  principal,  it  only 
signifies  that  the  principal  has  apparently  ^\VQ.n  his  agent  author- 
ity to  do  the  act,  and,  as  against  a  person  dealing  with  the 
agent  in  good  faith,  he  shall  not  be  heard  to  deny  the  agent's 
authority. 

But  where  the  question  is  one  of  duty,  there  seems  to  be  no 
room  for  the  application  of  any  such  principle.  If  it  is  not  the 
duty  of  a  person  to  render  a  specified  service,  we  fail  to  com- 
prehend how  it  can  correctly  be  said  that  the  service  is  within 
the  line  or  scope  of  his  duty — that  is  to  say,  that  although  it  is 
not  actually  his  duty  to  render  the  service,  yet,  because  it  is  his 
apparent  duty  to  do  so,  he  shall  be  held  to  the  same  conse- 


SEC.   IK'. J  HARRIS    v.    MORE.  5II 

quinces  as  though  it  were  his  actual  duty.  It  seems  to  us  that 
the  mere  statement  of  the  proposition  is  sufficient  to  show  that 
it  is  untenable. 

The  respective  counsel  have  cited  and  commented  upon 
numerous  cases  bearing  upon  the  question  under  consideration. 
There  is  some  apparent  conflict  of  doctrine  in  them.  In  man}- 
of  those  cited  on  behalf  of  the  defendant,  claimants  of  rewards 
have  been  defeated  because  (as  it  is  said)  it  was  within  the  line 
or  scope  of  their  duties  as  officers,  or  otherwise,  to  render  the 
services  for  which  the  rewards  were  offered.  Yet  in  some  of 
these  cases  it  was  held  that  it  was  the  duty  of  the  claimants  to 
render  those  specific  services.  The  cases  cited  on  behalf  of  the 
plaintiff  fully  sustain  the  position  of  his  counsel,  that,  unless  it 
was  the  duty  of  the  plaintiff  as  a  fireman  to  rescue  the  body  of 
Mrs.  Paige,  he  is  in  a  position  to  claim  the  alleged  reward.  A 
reference  to  these  cases  will  be  found  in  the  report  of  the  argu- 
ments, and  it  is  unnecessary  to  cite  them  here.  To  state  these 
cases  in  detail,  and  to  comment  upon  them  here,  would  un- 
reasonably extend  this  opinion,  which,  perhaps,  is  already  too 
long,  and  would  serve  no  useful  purpose.  We  must  content 
ourselves,  therefore,  with  the  foregoing  general  observations 
upon  them. 

It  follows,  from  the  views  above  expressed,  that  inasmuch  as 
the  plaintiff  could  not  rescue  the  body  of  Mrs.  Paige  from  the 
burning  building  without  imminent  peril  of  losing  his  own  life, 
and  inasmuch  as  it  was  not  his  duty  as  a  paid  officer  and  mem- 
ber of  the  Fire  Department  to  do  so,  he  is  in  a  position  to  claim 
the  reward  alleged  to  have  been  offered  by  the  defendant  for 
such  rescue. 

The  judgment  of  nonsuit  must  be  reversed,  and  the  cause  will 
be  remanded  for  a  new  trial. 

By  the  Court.     It  is  so  ordered. 


EMIL    HARRIS,   Respondent,  v.   A.   P.   MORE,  Appellant. 

In  the  Supreme  Court  of  California,  August  28,  1886. 

^Reported  in  70  Calif  oriiia  Reports  502.  J 

Appeal  from  a  judgment  of  the  Superior  Court  of  Santa  Bar- 
bara County,  and  from  an  order  refusing  a  new  trial. 

The  action  was  brought  to  recover  for  certain  services  per- 
formed under  an  agreement  stated  in  the  opinion.  The  further 
facts  are  stated  in  the  opinion  of  the  Court. 


512 


LOYD    V.    LEE.  [chap.  I. 


Thomas  McNulta,  A.  A.  Oglesby  and  IV.  E.  Shepherd  for  ap- 
pellant. 

W.  T.   Williams  and  W.  C.  Stratton  for  respondent. 

Myrick,  J.  The  defendants  executed  an  agreement  in  writ- 
ing to  pay  moneys  to  any  person  furnishing  evidence  which 
would  lead  to  the  conviction  of  persons  implicated  in  the  com- 
mission of  a  crime.  The  agreement  was  delivered  to  the  plain- 
tiff. It  contained  a  clause  agreeing  to  pay  plaintiff  certain  ex- 
penses in  investigating  the  matter  of  the  offence.  The  plaintiff 
rendered  services  in  regard  to  discovering  evidence  and  causing 
the  same  to  be  produced  at  the  trial.  The  plaintiff  was  deputy 
sheriff  of  Los  Angeles  County,  and  the  offence  was  committed 
and  the  trial  had  in  another  county. 

As  the  plaintiff  had  no  legal  duty  to  perform,  by  virtue  of  his 
office  of  deputy  sheriff,  in  regard  to  discovering  the  evidence 
and  causing  it  to  be  produced,  having  no  writ  to  execute,  and 
the  offence  having  been  committed  and  the  trial  had  out  of  his 
county,  we  do  not  think  the  policy  of  the  law  forbade  his  re- 
ceiving the  compensation.  It  was  not  compensation  for  the 
performance  of  any  duty  enjoined  upon  him  by  law. 

No  error  appears  in  the  transcript. 

Judgment  and  order  affirmed. 

McKiNSTRY,  J.,  and  Morrison,  C.J.,  concurred. 

Hearing  in  Bank  denied. 


(/")  Forbearance  or  compromise  as  a  consideration. 

LOYD  V.   LEE. 

At  Nisi,  Before  Pratt,  C.J.,  1718. 

\^Reported  in  i  Strange  94.] 

A  MARRIED  woman  gives  a  promissory  note  as  ^  fet7ie  sole  j  and 
after  her  husband's  death,  in  consideration  of  forbearance, 
promises  to  pay  it.  And  now  in  an  action  against  her  it  was 
insisted  that  though  she  being  under  coverture  at  the  time  of 
giving  the  note,  it  was  voidable  for  that  .reason  ;  yet  by  her 
subsequent  promise,  when  she  was  of  ability  to  make  a  promise, 
she  had  made  herself  liable,  and  the  forbearance  was  a  new  con- 
sideration. But  the  Chief  Justice  held  the  contrary,  and  that 
the  note  was  not  barely  voidable,  but  absolutely  void  ;  and  for- 


SEC.  II/.]  ANONYMOUS.  513 

bearance,  where  originally  there  is  no  cause  of  action,  is  no 
consideration  to  raise  an  assumpsit.  But  he  said  it  might  be 
otherwise  where  the  contract  was  but  voidable.  And  so  the 
plaintiff  was  called. 


ANONYMOUS. 

In  the  King's  Bench,  June  16,  1774. 
{^Reported  in  Cowper  128. J 

Upon  a  rule  to  show  cause  why  upon  filing  common  bail  a 
supersedeas  should  not  issue  as  to  this  action  to  discharge  the 
defendant  out  of  jail  ;  Mr.  Cowper  showed  for  cause  that  though 
the  debt  was  originally  under  ^10.  yet  after  judgment  obtained 
and  costs  taxed,  the  whole  sum  amounted  to  ^17  ;  and  that 
upon  a  writ  of  execution  being  sued  out,  the  defendant,  in  con- 
sideration that  the  plaintiff  would  stay  the  execution  at  that 
time,  undertook  and  promised  to  pay  the  debt  and  costs.  That 
several  applications  had  been  since  made  to  the  defendant  for 
payment  without  effect,  and,  therefore,  he  was  now  held  to  bail 
upon  his  new  assumpsit  for  the  ;£,i']. 

WiLLES,  J.,  mentioned  the  case  of  Palmer  v.  Nedham,  3  Burr, 
1389,  where  the  plaintiff,  whose  original  demand  was  only 
jQ2i  ^Z^-  6^.  having  obtained  judgment,  brought  an  action  of 
debt  thereupon  for  the  debt  and  costs,  amounting  in  the  whole 
to  above  ^j^io,  and  held  the  defendant  to  special  bail.  But 
upon  showing  cause  why  common  bail  should  not  be  accepted, 
and  the  bail-piece  discharged,  the  Court  ordered  it  accordingly. 

Lord  Mansfield.  This  is  a  new  species  of  action,  and  an 
attempt  to  turn  a  judgment  debt  into  a  debt  upon  simple  con- 
tract. If  the  undertaking  had  been  by  a  third  person  in  conse- 
quence of  the  forbearance,  it  would  have  been  a  good  ground 
of  assumpsit  against  such  third  person.  But  here  the  promise  is 
by  the  defendant  himself  to  pay  a  debt  to  which  he  was  before 
liable  upon  record,  for  by  the  judgment  he  is  liable  to  the  costs 
as  well  as  to  the  debt.  And,  therefore,  I  am  of  opinion  that 
such  promise  is  no  ground  upon  which  to  raise  an  assu?npsit. 

AsHURST,  J.  I  am  of  the  same  opinion.  This  promise  is  no 
waiver  or  extinguishment  of  the  judgment  debt,  but  it  still 
remains  a  lien  upon  the  land. 

Rule  made  absolute. 


514  JONES   V.   ASHBURNHAM   AND    WIFE.  [CHAP.  I. 

JONES  V.  ASHBURNHAM  and  NANCY,  his  Wife. 

In  the  King's  Bench,  January  31,  1804. 

[Reported  in  4  East  45 5. J 

The  plaintiff  declared  that  whereas  one  S.  F.  Bancroft,  since 
deceased,  at  the  time  of  his  death  was  indebted  to  him  in  £^^2y 
for  goods  before  that  time  sold  and  delivered  to  the  deceased, 
whereof  the  defendant  Nancy  had  notice,  and  thereupon,  after 
the  death  of  Bancroft,  the  defendant  Nancy,  before  her  inter- 
marriage with  the  other  defendant,  Ashburnham,  in  considera- 
tion of  the  premises,  and  also  in  consideration  that  the  plaintiff, 
at  the  special  instance  and  request  of  the  defendant  Nancy, 
would  forbear  and  give  day  of  payment  of  the  said  ^58  as  after- 
mentioned,  she,  the  said  Nancy,  by  a  note  in  writing  signed  by 
her  according  to  the  form  of  the  statute,  etc.,  on  March  20th, 
1801,  undertook  and  promised  the  plaintiff  to  discharge  the  said 
debt  so  due  and  owing  to  him  in  a  reasonable  time,  and  to  send 
him  ^20  in  part  payment  in  the  July  following.  And  although 
the  same  July  is  long  since  passed,  during  which  the  said  Nancy 
continued  sole,  and  a  reasonable  time  elapsed  for  the  payment 
of  the  whole  ;j^58,  according  to  the  tenor  and  effect  of  the  said 
promise,  and  though  the  plaintiff  has  always  from  the  time  of 
making  the  said  promise  hitherto  forborne  and  given  day  of 
payment  of  the  said  debt,  whereof  the  defendant  Nancy  before 
her  intermarriage,  and  both  the  defendants  since  their  inter- 
marriage, .have  had  due  notice,  yet  the  defendants  have  respec- 
tively, etc.,  refused  to  pay,  etc.  There  were  other  counts  in 
substance  the  same  ;  one  alleging  the  forbearance  to  be  till 
July,  etc.  To  all  which  there  was  a  demurrer,  assigning  for 
special  causes  ;  that  it  is  not  alleged  in  the  declaration  from 
whom  the  said  sum  of  j[^S'^  therein  mentioned  was  due  and 
owing  to  the  plaintiff  at  the  time  when  the  defendant  Nancy  is 
supposed  to  have  made  the  promise  and  undertaking  mentioned, 
or  that  any  persons  or  person  were  or  was  then  liable  to  pay 
the  plaintiff  that  sum  ;  and  that  it  is  not  alleged  to  whom  the 
plaintiff  hath  forborne  and  given  day  of  payment  of  the  said 
;2{^58  ;  and  that  the  declaration  does  not  disclose  any  legal  and 
sufficient  consideration  for  the  supposed  promise  ;  nor  does  it 
thereby  appear  that  the  plaintiff  has  any  good  cause  of  action 
against  the  defendants,  etc. 

Marryat  in  support  of  the  demurrer. 

Jervis^  contra. 


SEC.  II/.]  JONES    V.    ASIIBURNHA.M    AND    WIFE.  515 

Lord  Ellenborough,  C.J.  The  way  in  which  I  am  disposed 
to  consider  tliis  case  will  break  in  upon  no  recognized  rule  of 
law,  nor  on  the  plain  sense  of  what  was  laid  down  by  Yates,  J., 
in  the  case  of  Pillans  ?;.  Van  Mierop.  It  is  a  known  rule  of  law, 
that  to  make  a  promise  obligatory  there  must  be  some  benefit 
to  the  party  making  it,  or  some  detriment  to  the  party  to  whom 
it  is  made  ;  otherwise  it  is  considered  as  nudum  pactum  and  can- 
not be  enforced.  I  do  not  say  that  the  opinion  which  I  have 
formed  will  not  break  in  on  any  of  the  cases  which  have  been 
cited,  but  it  intrenches  on  no  general  rule  ;  and  in  order  to 
show  that,  I  will  examine  the  rule  referred  to  as  laid  down  by 
Yates,  J.,  and  see  how  it  applies  to  the  present  case.  He  says 
that  "  any  damage  to  another,  or  suspension  or  forbearance  of 
his  right,  is  a  foundation  for  an  undertaking,"  etc.  Now  how 
does  the  plaintiff  show  any  damage  to  himself  b)''  forbearing  to 
sue  when  there  was  no  fund  which  could  be  the  object  of  suit, 
where  it  does  not  appear  that  any  person  in  rerum  naturd  was 
liable  to  be  sued  by  him  ?  No  right  can  exist  in  this  vague, 
abstract,  and  indefinite  way.  Right  is  a  correlative  term  ; 
there  must  be  some  object  of  right,  some  object  of  suit  ;  some 
party  who,  in  respect  of  some  fund  or  some  character  known 
in  the  law  is  liable  ;  otherwise  there  cannot  be  said  to  be  any 
right.  Has  there  been  then  any  suspension  of  the  plaintiff's 
right  ?  Now  unless  a  right  is  capable  of  being  exercised,  unless 
it  can  be  put  in  force,  there  can  be  no  suspension  of  it.  And 
that  it  could  have  been  exercised  or  put  in  force  but  for  the 
promise  made  by  the  defendant  is  not  shown.  Then  what  for- 
bearance is  shown  ?  It  must  be  a  forbearance  of  a  right  wliich 
may  be  enforced  with  effect.  It  is  true  that  a  promise  may  be 
binding  though  there  may  be  no  actual  benefit  resulting  to  the 
party  making  it,  because  it  is  enough  if  the  plaintiff  may  be 
damaged  by  it  ;  but  it  does  not  appear  here  that  the  forbear- 
ance could  produce  any  detriment  to  the  plaintiff.  It  does  not 
therefore  appear  that  Yates,  J.,  laid  down  any  doctrine  which 
does  not  square  with  the  general  received  rule  of  law,  that  ta 
sustain  a  promise  there  must  be  a  benefit  on  the  one  hand  or  a 
detriment  on  the  other.  But  here,  whether  there  were  any 
representative  or  any  funds  of  the  original  debtor  does  not 
appear.  Then,  as  to  the  cases  cited,  that  of  Rosyer  v.  Lang- 
dale  is  strong  to  the  purpose,  for  it  was  there  decided  that  a 
promise  in  consideration  that  the  plaintiff  would  forbear  suit 
until  the  defendant  had  taken  out  letters  of  administration  was 
without  foundation,  because  it  did  not  appear  that  the  party 
was  liable  before  administration  taken  out.  And  this  was 
rightly  determined,  for  forbearance  of  an  unfounded  suit  is  no^ 


5l6  JONES   V.   ASHBURXHAM   AND    WIFE.  [CHAP.  I. 

forbearance.  But  this  case  is  attempted  to  be  met  by  that  of 
Hume  V.  Hinton,  in  the  same  book,  where  a  promise  by  the 
mother  of  an  intestate  indebted  to  the  plaintiff,  that  if  he  would 
stay  for  the  money  till  a  given  day  she  would  pay  it,  was  sus- 
tained. That,  however,  was  after  verdict ;  and  that  is  material 
to  be  attended  to,  because  it  might  be  presumed  to  have  been 
proved  that  the  defendant  had  so  intermeddled  with  the  intes- 
tate's effects  as  to  make  herself  liable  as  executrix  de  son  tort, 
and  had  funds  of  the  deceased  in  her  hands  for  which,  but  for 
the  promise  made,  she  might  have  been  sued  in  that  character. 
But  no  such  intendment  can  be  made  here.  The  case  of  Quick  v. 
Copleton  is  also  relied  on.  That  too  was  after  verdict,  and  it 
was  moved  in  arrest  of  judgment  for  want  of  consideration.  I 
think  that  even  after  verdict  that  declaration  would  be  bad, 
being  vicious  on  the  face  of  it.  It  is  stated  that  the  defendant's 
late  husband  was  indebted  to  the  plaintiff,  and  that  she  (not 
stating  her  to  be  clothed  with  any  representative  character) 
about  to  come  to  London,  and  being  in  fear  to  be  arrested  by 
the  plaintiff,  promised,  etc.  Now  an  attempt  to  impose  upon  a 
person  an  unlawful  terror  (and  the  threatening  of  an  unlawful 
suit  is  as  bad)  can  never  be  a  good  consideration  for  a  promise 
to  pay;  yet  that  ground  is  insisted  on  by  the  Chief  Justice. 
And  as  to  the  case  there  cited  by  him  of  a  mother  who  prom- 
ised to  pay,  on  forbearance  of  the  plaintiff  to  arrest  the  dead 
body  of  her  son,  which  she  feared  he  was  about  to  do,  it  is  con- 
trary to  every  principle  of  law  and  moral  feeling.  Such  an  act 
is  revolting  to  humanity  and  illegal,  and  therefore  any  promise 
extorted  by  the  fear  of  it  could  never  be  valid  in  law.  It  might 
as  w^ell  be  said  that  a  promise,  in  consideration  that  one  would 
"withdraw  a  pistol  from  another's  breast,  could  be  enforced 
against  the  party  acting  under  such  unlawful  terror.  Here, 
there  being  no  consideration  of  benefit  to  the  defendant,  or  of 
detriment  or  possibility  of  detriment  to  the  plaintiff,  shown  by 
him  on  the  face  of  the  declaration,  and  this  coming  on  upon 
demurrer,  where  nothing  can  be  intended,  as  it  may  after  ver- 
dict, I  am  clearly  of  opinion  that  the  declaration  is  bad. 

Grose,  J.  It  must  be  admitted  that  if  a  consideration  for  the 
promise  does  not  sufficiently  appear  upon  the  face  of  the  declara- 
tion it  cannot  be  supported.  There  is  a  great  difference  between 
questions  of  this  sort,  arising  upon  demurrer  to  the  declaration, 
and  in  arrest  of  judgment  after  verdict  ;  in  which  latter  case 
everything  is  to  be  intended  which  can  be  in  favor  of  the  ver- 
dict, but  not  so  on  demurrer.  It  is,  however,  said  that  a  detri- 
ment to  the  plaintiff  will  support  an  assumpsit  as  well  as  a 
benefit  to  the  defendant,  and  that  here  the   plaintiff  alleges  a 


SEC.  II/.]  JONES    V.   ASHBURNHAM    AND    WIFE.  517 

forbearance.  But  it  is  a  perversion  of  terms  to  call  that  a  for- 
bearance to  sue  if  there  were  no  person  who  was  capable  of 
being  sued,  and  here  none  is  shown.  There  can  be  no  forbear- 
ance in  such  a  case,  and  therefore  there  is  an  end  of  the  con- 
sideration. This  is  too  plain  to  require  anything  further  to  be 
said  upon  it,  and  makes  it  unnecessary,  after  what  my  Lord  has 
said,  to  enter  into  the  consideration  of  the  cases. 

Lawrence,  J.  This  question  arises  upon  a  special  demurrer, 
which  points  out  an  objection  to  the  declaration,  that  no  person 
is  stated  who  was  liable  to  be  sued  at  the  time  of  the  promise 
made,  in  respect  to  whom  the  plaintiff  can  be  said  to  have  for- 
borne suit.  And  on  this  ground  the  case  is  distinguishable 
from  those  relied  on  by  the  plaintiff's  counsel,  which  were  after 
verdict  ;  and  in  support  of  which  it  might  be  said  that  when 
the  jury  found  that  the  plaintiff  did  forbear  to  sue,  they  must 
be  presumed  to  have  found,  upon  proof  laid  before  them,  that 
there  was  somebody  who  could  have  been  sued.  But  no  such 
intendment  can  be  made  upon  demurrer.  The  argument  pro- 
ceeds upon  a  fallac}^  in  supposing  that  some  person  must  exist 
liable  to  the  plaintiff's  suit,  to  forbear  whom  must  consequently 
be  a  disadvantage  to  him  and  a  consideration  for  the  defend- 
ant's promise.  But  that  is  not  so.  The  deceased  might  leave 
no  assets,  and  there  might  be  no  administration  to  him  taken 
out  ;  there  would  then  be  no  person  to  sue.  So  he  might  be  a 
bastard  and  have  no  legal  representatives  entitled  to  take  out 
administration  of  his  effects,  in  which  case  the  Crown  would  be 
entitled  to  them,  and  still  there  would  be  nobody  to  be  sued. 
It  is  not,  therefore,  true  that  there  must  be  somebody  liable  to 
whom  a  forbearance  to  sue  may  refer.  And  I  agree  with  the 
argument  of  the  defendant's  counsel  that  if  it  be  no  considera- 
tion for  the  promise  to  forbear  to  sue  the  defendant  without 
showing  that  the  defendant  was  before  liable  to  have  been  sued, 
it  can  be  no  consideration  for  a  promise  to  forbear  to  sue  all 
the  world  generally  without  showing  that  some  person  or  other 
was  liable  to  be  sued,  for  without  that  the  plaintiff  does  not 
show  any  detriment  arising  to  him  from  the  forbearance  of  his 
suit.  The  principle  is  admitted  that  the  plaintiff  must  show 
some  benefit  to  the  defendant  or  some  detriment  to  himself. 
And  I  understand  Yates,  J.,  in  illustrating  that  principle  in  the 
passage  cited,  to  say  that  where  it  appears  on  the  face  of  the 
declaration  that  there  is  somebody  whom  the  plaintiff  may  sue, 
it  is  not  necessary  to  show  that  he  would  be  benefited  by  suing 
him  ;  it  is  sufficient  that  there  is  some  person  whom  he  might 
sue,  and  from  whom  he  might  obtain  satisfaction. 

Le  Blanc,  J.     The  definition  by  Yates,  J.,  of  a  consideration 


5l8  JONES   V.    ASIIBURXIIAM    AND    WIFE.  [cHAP.  I. 

sufficient  to  maintain  a  promise  is,  that  it  be  either  of  some 
benefit  to  the  defendant  or  some  detriment  to  the  plaintiff.  It 
is  sufficient,  if  it  be  a  detriment  to  the  plaintiff,  though  no 
actual  benefit  accrue  to  the  party  undertaking.  So  far  only  the 
definition  goes.  Afterward,  indeed,  in  commenting  on  that 
definition,  he  says,  that  the  promise  of  the  defendant  did  occa- 
sion a  possibility  of  loss  to  the  plaintiffs.  They  might,  he  says, 
have  been  thereby  prevented  from  resorting  to  the  original 
debtor,  or  getting  further  security  from  him.  But  all  this  latter 
part  is  only  a  comment  on  the  definition,  and  showing  how  the 
case  then  in  judgment  applied  to  it.  But  I  do  not  take  it  to  be 
any  part  of  the  definition  itself  intended  to  be  laid  down  by 
him,  that  if  any  person  stated  that  he  had  forborne  suing  on  a 
cause  of  action  which  might  (or  might  not)  by  possibility  occa- 
sion a  loss  to  him,  that  was  a  sufficient  ground  for  an  under- 
taking by  another  to  pay  him.  Now  here  the  plaintiff  endeavors 
to  make  out  a  detriment  to  himself  by  showing  that  one  de- 
ceased was  indebted  to  him,  and  that  in  consideration  that  he 
would  forbear  and  give  day  of  payment  the  defendant  promised, 
etc.  But  it  does  not  follow  of  course  from  thence  that  any 
detriment  arose  to  the  plaintiff  from  his  forbearance  if  it  do  not 
appear  that  there  was  any  person  whom  he  could  have  sued. 
And  the  general  current  of  authorities  shows  that  it  is  not  suffi- 
cient to  state  a  consideration  to  forbear  generally,  unless  it  be 
also  shown  that  there  was  some  person  to  be  forborne.  Now 
here  the  declaration  does  not  state  that  there  was  any  repre- 
sentative of  the  debtor,  or  that  any  person  had  taken  out  admin- 
istration to  him,  or  that  any  person  was  going  to  administer  to 
the  effects  and  to  satisfy  the  plaintiff's  debt,  but  was  prevented 
from  so  doing  by  the  undertaking  of  the  defendant.  There, 
therefore,  appears  to  be  a  want  of  consideration  to  sustain  the 
promise. 

Judgment  for  the  defendant. 


SEC,  II/.]  SMITH   V.   ALGAR.  519 

SMITH  V.  ALGAR. 

In  the  King's  Bench,  November  26,  1830. 

[Reported  in  i  Barnewall  6>»  Adolphus  603.] 

Assumpsit.  The  first  count  stated  that  the  plaintiff  had  ob- 
tained judgment  against  one  Elizabeth  Mackenzie  for  a  debt  of 
^57  65^-.  costs,  and  for  satisfaction  thereof  had  sued  out  a  writ 
oi  fieri  facias  to  levy  the  said  debt  and  costs  of  the  goods  of  the 
said  Elizabeth  Mackenzie  ;  that  the  plaintiff  was  about  to  en- 
force the  execution  of  the  said  writ,  and  to  levy  to  the  amount 
of  jQio"]  upon  goods  of  Elizabeth  Mackenzie  of  the  value  of 
^200,  which  the  defendant  had  in  his  custody  ;  and  that  after- 
ward, in  consideration  of  the  premises,  and  that  the  plaintiff, 
at  the  defendant's  instance,  would  forego  executing  the  writ 
against  the  said  goods  for  the  recovery  of  the  said  sum  of  ;^io7, 
defendant  undertook  to  pay  plaintiff  the  last-mentioned  sum  in 
seven  days  then  next  following  ;  that  plaintiff  forbore  accord- 
ingly, but  defendant  did  not  pay.  The  second  count  stated  the 
consideration  to  be,  that  the  plaintiff  would  forbear  executing  a 
writ  oi  fieri  facias  issued  against  the  goods  of  Elizabeth  Macken- 
zie, not  saying  at  whose  suit  or  for  what  sum.  The  defendant 
demurred  specially  to  each  count,  and  there  was  a  joinder  in 
demurrer. 

Flatt  in  support  of  the  demurrer. 

Kelly,  contra,  was  stopped  by  the  Court. 

Lord  Tenterden,  C.J.  I  agree  in  the  principles  laid  down 
in  the  cases  which  have  been  cited,  but  they  do  not  appear  to 
me  to  be  applicable.  It  is  true,  the  plaintiff  might  not,  per- 
haps, have  been  entitled  to  recover  to  the  full  extent  of  ;£io'j, 
though,  it  is  to  be  observed,  he  might  have  levied  the  costs  of 
the  execution  in  addition  to  the  sum  given  by  the  judgment. 
But  he  had  a  right,  at  least,  to  levy  j£6o,  and  if,  in  considera- 
tion of  his  forbearing  that,  the  defendant  piomised  to  pay  him  the 
larger  sum — if  the  inconvenience  of  an  execution  against  these 
goods  at  the  time  in  question  was  so  great  that  the  defendant 
thought  proper  to  buy  it  off  at  such  an  expense — I  do  not  see 
that  the  consideration  is  insufficient  for  the  promise. 

Parke,  J.  If  a  plaintiff  has  a  fieri  facias  endorsed  to  levy 
^60,  there  is  no  reason  why  the  forbearing  to  execute  such  writ 
should  not  be  a  good  consideration  for  a  promise  by  a  third 
person  to  pay  double  the  amount  at  the  end   of  seven  days 


520  MORTON  V.   BURN  AND   VAUX.  [CHAP.  I. 

What  damages  the  plaintiff  may  recover  in  an  action  on  such 
promise  is  another  question. 

Taunton  and  Patteson,  JJ.,  concurred. 

Judgment  for  the  plaintiff  on  the  first  count. 


MORTON  V.  BURN  and  VAUX. 

In  the  King's  Bench,  June  12,  1837. 

[Reported  in  7  Adolphus  &=  Ellis  19.] 

Assumpsit.  The  first  count  of  the  declaration  stated  that, 
whereas,  before  and  at  the  time  of  making  the  promise,  etc.,  to 
wit,  April  12th,  1834,  the  defendants  were  indebted  to  the  plain- 
tiff in  ^728  2s.  6d.,  and  interest  thereon  from  February  ist, 
1834,  under  and  by  virtue  of  a  bond  dated  July  14th,  1832,  and 
a  certain  indenture  and  deed  of  assignment  thereof  dated  Octo- 
ber 19th,  1833,  and  that,  according  to  the  condition  of  the  said 
bond,  ;;^228  2s.  6d.,  part  of  the  said  sum  of  ;^728  2s.  6d.  ought 
to  have  been  paid  on  February  ist  then  last  past,  and  there- 
upon, in  consideration  of  the  premises,  and  also  in  consideration 
that  plaintiff  would  accept  and  receive  payment  of  the  said 
sums  of  money  on  the  days  and  times  after  mentioned,  and,  in 
the  mean  time,  give  time  to  defendants  for  payment,  the  defend- 
ants undertook,  etc.,  that  the  whole  of  the  said  ;!^228  2s.  6d., 
with  interest  from  February  ist,  1834,  should  be  paid  to  plain- 
tiff on  or  before  June  ist  then  next,  or,  in  default  thereof,  that 
defendants  would  sign  a  warrant  of  attorney  to  plaintiff  to  enter 
up  judgment  against  them  forthwith  for  the  same  ;  and  that 
defendants  would  pay  to  plaintiff  ;^5o  quarterly,  on  Septem- 
ber ist,  etc.,  in  every  year,  until  the  further  sum  of  ^500  (resi- 
due of  the  said  £,']2%  2s.  6d.),  with  interest  at  ^5  per  cent  per 
annum,  should  be  fully  paid  and  satisfied  ;  and,  in  default' of 
paying  any  of  the  last-mentioned  instalments,  defendants  would 
execute  a  warrant  of  attorney  to  plaintiff  forthwith  to  enter  up 
judgment  against  them  for  the  whole  ^500  and  interest,  or  so 
much  thereof  as  might  then  remain  due  ;  averment  that  plain- 
tiff did  forbear  and  give  time  to  defendants  for  the  payment  of 
the  said  ;^728  2s.  6d.,  and  interest,  until  and  upon  the  respec- 
tive days  and  times  mentioned  for  payment  thereof  in  the  said 
promise  and  undertaking  of  the  defendants  ;  and,  although 
defendants  paid  plaintiff  the  said  ^228  2s.  6d.  and  interest 
thereon,  yet  they  did  not  nor  would  pay  plaintiff  ^50  quarterly, 


SEC.  ll/.]  MORTON   V.    BURN   AND    VAUX.  521 

on  the  days  and  times  above  mentioned  in  that  behalf,  but 
therein  wholly  made  default  ;  and  a  large  sum  of  money  of  the 
said  instalments — viz.,  ^^250,  for  five  several  sums  of  ^50  re- 
spectively due  on  September  ist,  1835,  etc.,  now  is  wholly  due 
and  in  arrear,  etc.;  and,  although  defendants  made  default  in 
payment  of  the  respective  sums  on  the  days  and  times  afore- 
said, according  to  the  tenor  and  effect,  etc.,  of  their  said  prom- 
ise and  undertaking,  yet  defendants  did  not  nor  would  execute 
a  warrant  of  attorney  to  enable  plaintiff  forthwith  to  enter  up 
judgment  against  them  for  so  much  of  the  ^500  and  interest  as 
then  remained  due,  etc.  There  was  a  second  count  on  an 
account  stated,  and  for  interest. 

Pleas  I.  JVon  assumpsit.  2.  To  the  first  count,  that  there  was 
not  any  good  or  valuable  consideration  for  the  promises  in  the 
first  count  mentioned  ;  conclusion  to  the  country.  Issues  on 
both  pleas. 

On  the  trial  before  Coleridge,  J.,  at  the  Middlesex  sittings 
after  Michaelmas  Term,  1836,  a  verdict  was  found  for  the  plain- 
tiff. In  Hilary  Term  last,  F.  Edwards  obtained  a  rule  nisi  for 
arresting  the  judgment. 

Cresswell  and  W.  H.   Watsoti  now  showed  cause. 

F.  jEdwards,  contra. 

Lord  Denman,  C.J.,  in  this  term  (June  12th),  delivered  the 
judgment  of  the  Court. 

This  is  a  motion  in  arrest  of  judgment.  The  question  is, 
whether  forbearance  for  a  given  time  on  the  part  of  the  assignee 
of  a  bond  to  sue  the  obligors,  is  a  good  consideration  for  a 
promise  by  the  obligors  to  pay  the  assignee  at  the  expiration  of 
that  time,  or  give  him  a  warrant  of  attorney  for  the  amount. 

It  was  objected  that  there  is  no  mutuality  in  the  agreement  ; 
for  that,  if  the  plaintiff  had  sued  the  defendants  in  the  obligee's 
name,  the  promise  to  forbear  would  be  no  answer.  Again,  that 
this  is  a  mere  nudum  pactum,  being  only  a  promise  to  do  that 
which  the  defendants  were  already  bound  to  do  by  their  bond. 
And,  further,  that,  if  this  promise  be  binding,  it  amounts  to 
varying  a  deed  by  parol  contract,  which  is  contrary  to  the  rule 
of  law.  We  do  not  think  any  of  these  objections  sufficient  to 
arrest  the  judgment. 

As  to  the  first,  there  is  sufficient  mutuality  ;  for,  although  the 
agreement  to  forbear  would  not  be  pleadable  to  an  action  in  the 
name  of  the  obligee,  yet,  unless  the  plaintiff  did  forbear  accord- 
ing to  his  agreement,  he  would  not  be  able  to  sue  on  the  de- 
fendants' promise.  He  is  obliged  to  aver,  as  he  does  in  the 
present  declaration,  that  he  has  forborne,  which  is  a  condition 
precedent  to  his  suing. 


C22  WADE   V.    SIMEON.  [CHAP.  I. 

As  to  the  second  objection,  this  is  not  a  mere  nudutn pactum, 
for  the  defendants  promise  to  pay  the  plaintiff,  a  third  person, 
whom  they  were  not  bound  to  pay  by  their  bond  ;  and  they 
promise,  in  consideration  of  a  detriment  sustained  by  the  plain- 
tiff at  their  request — namely,  a  forbearance  to  enforce  his  right 
in  the  name  of  the  obligee. 

As  to  the  third  objection,  the  bond  is  in  no  respect  varied  by 
this  agreement.  The  new  contract  entered  into  by  the  defend- 
ants with  the  plaintiff  leaves  the  bond  just  as  it  was  before  :  it 
was  forfeited  before  the  agreement,  and  so  it  remains  ;  and  the 
agreement  would  be  no  answer  to  an  action  on  it. 

The  cases  on  this  subject  are  collected  in  Williams's  notes  to 
Forth  V.  Stanton'  and  to  Barber  v.  Fox,''  to  which  may  be  added 
Yard  v.  Eland, ^  and  other  cases  collected  in  Comyns's  Digest, 
Action  on  the  Case  upon  Assumpsit,  Consideration  (B).  They 
are  all  in  favor  of  the  action  lying,  with  the  exception  of  Pot- 
ter V.  Turner,''  which  we  think  inconsistent,  not  only  with  the 
current  of  authorities,  but  with  established  principles. 

For  these  reasons  we  are  of  opinion  that  the  rule  to  arrest  the 
judgment  in  this  case  must  be  discharged. 

Rule  discharged. 


WADE  V.  SIMEON. 

In  the  Common  Pleas,  January  21,  1846. 

\_Reported  ill  2  Common  Bench  Reports  548.] 

Assumpsit.  The  first  count  of  the  declaration  stated  that, 
before  and  at  the  time  of  the  making  of  the  promise  thereinafter 
next  mentioned,  an  action  on  promises  had  been  commenced, 
and  prosecuted  by,  and  at  the  suit  of  the  plaintiff  against  the 
defendant,  in  the  Court  of  Exchequer,  that  the  plaintiff  had 
declared  in  the  said  action  against  the  defendant  for  the  non- 
performance by  the  defendant  of  certain  promises  in  the  decla- 
ration alleged  to  have  been  made  by  the  defendant  to  the  plain- 
tiff for  the  payment  by  the  defendant  to  the  plaintiff  of  two 
sums,  one  amounting  to  ;!^i3oo  and  the  other  amounting  to 
;;^7oo,  and  the  said  action  was  so  commenced  and  prosecuted, 
and  the  defendant  declared  therein  as  aforesaid,  for  the  recovery 
of  these  sums  and  the  damages  by  him  sustained  by  the  non- 
performance by  the  defendant  of  his  promises  in  respect  of  the 

'  I  Wms.  Saund.  210,  note  i.  ^  j  Lord  Raym.  368. 

«  2  Wms.  Saund.  137,  note  2.  *  Palm.  185  ;  S.  C.  Wmch  7. 


SEC.  II/.]  WADE    v.    SIMEON'.  523 

same,  parcel  of  such  damages,  being  interest  upon  the  said  sum 
of  ^1300  from  May  25th,  1840,  until  payment  of  the  said  sum 
of  ^1300,  and  other  parcel  of  such  damages  being  interest  upon 
the  said  sum  of  ^700  from  July  4th,  1840,  until  payment  of  the 
.said  sum  of  ;!^7oo  ;  that,  before  and  at  the  time  of  the  making 
of  the  promise  of  the  defendant  thereafter  mentioned,  the  de- 
fendant liad  pleaded  divers  pleas  to  the  said  declaration,  and 
divers  issues  had  been,  and  were  joined  between  the  plaintiff 
and  the  defendant  in  the  said  action,  and  the  plaintifif  had  given 
due  notice  for  the  trial  of  the  same,  and  the  same  were  about 
to  be  tried  at,  etc.,  and  the  plaintiff  had,  according  to  the  course 
and  practice  of  the  said  Court,  duly  entered  the  nisi prius  record 
in  the  said  action  for  the  said  trial,  and  the  said  trial  was  duly 
appointed  and  fixed  to  take  place  on  December  7th,  1844,  and 
the  same  would  have  taken  place  had  it  not  been  for  the  prom- 
ise of  the  defendant  as  thereinafter  mentioned  ;  that,  before  and 
at  the  time  of  the  making  of  the  promise  of  the  defendant  as 
thereinafter  mentioned,  the  plaintiff  had  been  put  to,  and"  in- 
curred divers  costs  and  charges  amounting,  to  wit,  to  ^300,  in 
and  about  the  said  action  ;  that,  before  and  at  the  time  of  the 
making  of  the  defendant's  promise  thereafter  mentioned,  the 
defendant  had,  to  wit,  on  December  3d,  1844,  caused  the  plain- 
tiff to  be  served  with  a  notice  that  the  defendant  would  apply 
to  and  move  Her  Majesty's  High  Court  of  Chancery,  for  an 
injunction  by  that  Court  to  restrain  the  plaintiff  from  issuing 
execution  in  the  said  action  on  any  judgment  obtained  by  him, 
in  case  the  plaintiff  should  obtain  such  judgment  ;  that  there- 
upon, to  wit,  on  December  6th,  1844,  being  the  day  next  before 
the  day  when  the  said  trial  was  so  appointed  and  fixed  to  take 
place  as  aforesaid,  in  consideration  that  the  plaintiff  would  for- 
bear prosecuting  and  would  stay  all  proceedings  in  the  said 
action  until  and  upon  December  14th,  1844,  save  and  except  the 
taxation  of  the  said  costs  and  charges,  and  the  obtaining  and 
drawing  up  of  an  order  therein  as  thereinafter  mentioned,  he 
the  defendant  promised  the  plaintiff  that  he  the  defendant 
would  on  that  day  pay  him  the  said  sums  of  ^1300  and  ^700, 
and  interest  thereon  respectively  as  aforesaid,  together  with  the 
said  costs  and  charges,  to  be  taxed,  and  that,  in  the  event  of 
the  defendant's  not  paying  the  same,  the  defendant  would 
suffer,  and  the  plaintiff  should  be  at  liberty  to  sign  judgment  in 
the  said  action,  and  that  a  judge's  order  should  and  might  be 
obtained  and  drawn  up  in  the  said  action,  to  secure  such  pay- 
ment, and  that  the  said  notice  and  the  said  application  to,  and 
motion  in  the  said  Court  of  Chancery,  should  be  abandoned. 
Averment,  that  the  plaintiff,  confiding  in   the  said   promise  of 


524  WADE   V.   SIMEON.  [CHAP.  I. 

the  defendant,  then,  to  wit,  on  December  6th,  1844,  withdrew 
the  said  record,  and  forbore  prosecuting,  and  stayed  all  further 
proceedings  in  the  said  action  until  and  upon  the  said  Decem- 
ber 14th,  1844,  save  and  except  the  taxation  of  the  said  costs 
and  charges,  and  the  obtaining  and  drawing  up  of  the  said 
order  to  be  so  obtained  and  drawn  up  as  aforesaid,  and,  save 
and  except  as  aforesaid,  the  plaintiff  had  from  thence  contin- 
ually forborne  to  prosecute,  and  had  stayed  all  further  proceed- 
ings in  the  said  action  ;  that,  after  the  making  of  the  said 
promise,  and  before  the  said  December  14th,  1844,  to  wit,  on 
December  nth,  1844,  the  costs  and  charges  of  the  plaintiff 
which  he  had  been  put  to  and  incurred  in  and  about  the  said 
action,  and  which  the  defendant  promised  to  pay  as  aforesaid, 
were  duly  taxed  at  ^81  \s.  lod.,  whereof  the  defendant  then 
had  notice  ;  and  that,  although  the  said  December  14th,  1844, 
had  elapsed  before  the  commencement  of  the  suit,  and  although 
the  said  interest  so  promised  to  be  paid  as  aforesaid  on  the  said 
December  14th,  1844,  amounted  to  a  large  sum,  to  wit,  ;^45i 
13^-.  2,d.,  yet  the  defendant,  although  often  requested  by  the 
plaintiff  so  to  do,  had  not  as  yet  paid  the  plaintiff  the  said  sum 
of  ^1300  and  ^700,  and  the  said  interest  amounting  to  ^451 
13J.  3^/.,  and  the  said  costs  and  charges  amounting  to,  and  so 
taxed  at  ^81  13^-.  xod  as  aforesaid,  or  either  of  them,  or  any 
part  thereof,  and  the  same  remained  wholly  due  and  unpaid  to 
the  plaintiff  ;  that  the  defendant  did  not  nor  would  suffer  or 
permit  the  plaintiff  to  sign,  and  afterward,  and  after  the  said 
December  14th,  1844,  to  wit,  on,  etc.,  and  from  thenceforv/ard 
wholly  hindered  and  prevented  the  plaintiff  from  signing  judg- 
ment in  the  said  action  ;  that  the  defendant  afterward,  to  wit, 
on  January  27th,  1845,  obtained  a  rule  and  order  of  the  said 
Court  for  setting  aside  a  certain  order  before  then,  to  wit,  on 
December  6th,  1844,  made  by  Alderson,  B.,  and  drawn  up  in 
pursuance  of  the  said  promise,  and  according  to  the  same  ;  and 
that  by  means  of  the  premises  the  plaintiff  had  been  delayed  in, 
and  hindered  and  prevented  from  recovering  the  said  sums  and 
moneys  so  promised  by  the  defendant  to  be  paid  as  aforesaid. 

There  was  also  a  count  upon  an  account  stated. 
Fourth  plea — to  the  first  count — that  the  plaintiff  never  had 
any  cause  of  action  against  the  defendant  in  respect  of  the  sub- 
ject-matter of  the  action  in  the  Court  of  Exchequer  in  that 
count  mentioned  ;  which  he,  the  plaintiff,  at  the  time  of  the 
commencement  of  the  action,  and  thence  until  and  at  the  time 
of  the  making  of  the  promise  in  the  said  first  count  mentioned 
well  knew — verification. 

Seventh   plea — to   both   counts — that   the   action   in  the  first 


SEC.  n/.]  WADE    f.    SIMEON.  525 

count  mentioned  was  brought  in  respect  of  two  checks,  one  for 
^1300,  and  the  other  for  ^700,  and  that,  after  the  nisi  prim 
record  in  that  count  mentioned  had  been  entered,  to  wit,  on, 
etc.,  the  defendant,  with  the  consent  of  the  plaintiff,  obtained 
an  order  in  the  said  cause  in  that  count  mentioned,  to  be,  and  the 
same  was,  made  by  Alderson,  B.,  which  order  was,  and  is  as  fol- 
lows— thatistosay:  "  Wade  z'.  Simeon.  Upon  hearing  the  attor- 
neys or  agents  on  both  sides,  and  by  consent,  I  do  order,  that, 
upon  payment  of  ^2000,  and  interest  on  the  two  checks,  from  the 
date  thereof  until  payment,  the  debt  due  from  the  defendant  to 
the  plaintiff  for  which  this  action  is  brought,  together  with 
costs,  to  be  taxed  and  paid  on  or  before  December  14th  instant, 
all  further  proceedings  in  this  cause  to  be  stayed  ;  and  I  further 
order,  that,  in  case  default  be  made  in  payment  as  aforesaid, 
the  plaintiff  shall  be  at  liberty  to  sign  final  judgment,  and  issue 
execution  for  the  whole  amount  remaining  unpaid  at  the  time 
of  such  default,  with  costs  of  judgment  and  execution,  sheriff's 
poundage,  officers'  fees,  and  all  other  incidental  expenses, 
whether  by  yf. /a.  or  ca.  sa.  Dated,  etc.;"  that  the  promise  in 
the  said  first  count  mentioned — that  the  defendant  would,  on 
said  December  14th,  pay  to  the  plaintiff  the  said  sums  of  ^1300 
and  ;z^7oo  and  interest  thereon  respectively  as  aforesaid,  together 
with  the  said  costs  and  charges,  to  be  taxed,  and  that,  in  the 
event  of  the  defendant's  not  paying  the  same,  the  defendant 
would  suffer,  and  the  plaintiff  should  be  at  liberty  to  sign  judg- 
ment in  the  said  action — was  a  promise  deduced  and  implied 
from  the  obtaining  and  the  making  of  the  said  order  as  afore- 
said, and  was  thereby,  and  in  no  other  way  made  to  the  plaintiff 
as  in  the  said  count  alleged  ;  that  the  promise  in  the  second 
count  mentioned  was  a  promise  deduced  and  implied  from  the 
obtaining  and  making  of  the  said  order  thereinbefore  men- 
tioned, and  from  the  ascertaining,  by  taxation,  of  the  amount 
of  the  costs  to  be  paid  pursuant  to  the  said  order,  and  was 
thereby  and  in  no  other  way  made  to  the  plaintiff  as  in  the  said 
second  count  alleged  ;  that,  after  the  making  of  the  said  order, 
and  before  the  time  thereby  appointed  for  payment,  to  wit,  on 
December  13th,  the  defendant  obtained  from  Parke,  B.,  a  sum- 
mons in  the  said  cause,  which  summons  was  and  is  as  follows 
— that  is  to  say,  etc.  [setting  out  a  summons,  returnable  on  the 
following  day,  calling  on  the  plaintiff  to  show  cause  why  the 
order  of  Alderson.  B.,  should  not  be  set  aside,  upon  payment 
into  Court  of  the  principal  and  interest  for  which  the  action 
was  brought,  and  the  defendant  let  in  to  try,  upon  terms,  and 
why  the  proceedings  should  not  in  the  mean  time  be  stayed,  or 
why  all  further  proceedings  should  not  be  stayed  until  the  fifth 


526  WADE   V.    SIMEON.  [CHAP.  I. 

da}'  of  the  then  next  term] — a  copy  of  which  summons  was,  on 
the  day  last-mentioned,  duly  served,  according  to  the  practice 
of  the  said  Court,  upon  the  plaintiff  ;  that,  after  the  service  of 
the  said  summons,  and  before  default  had  been  made  in  pay- 
ment according  to  the  terms  of  the  said  order  of  Alderson,  B., 
to  wit,  on  December  14th,  it  was  agreed  between  the  plaintiff 
and  the  defendant  that  Parke,  B.,  should  make,  and  he  did 
then,  to  wit,  on  the  day  last  aforesaid,  make,  by  consent  of  the 
plaintiff  and  the  defendant,  an  order  in  the  said  cause  [adjourn- 
ing the  summons  of  December  13th  to  the  17th]— a  copy  of 
which  last-mentioned  order  was>  before  any  default  had  been 
made  in  payment  as  aforesaid,  to  wit,  on,  etc.,  duly  served  on 
the  plaintiff,  according  to  the  practice  of  the  said  Court  ;  that 
afterward,  to  wit,  on  December  17th,  the  subject-matter  of  the 
last-mentioned  summons  was  heard  at  chambers  by  Rolfe,  B., 
and  thereupon  afterward,  to  wit,  on  December  i8th,  Rolfe,  B., 
did  make  an  order  in  the  said  cause  as  follows — that  is  to  say  : 
"  Wade  V.  Simeon.  Upon  hearing  counsel  on  both  sides,  and 
upon  reading  the  several  affidavits,  etc.,  I  do  order,  that,  upon 
the  defendant's  undertaking  to  pay  to  the  plaintiff  interest  on 
the  sum  of  ^^2400  from  the  14th  inst.,  at  ^5  per  cent,  if  the 
plaintiff  shall  eventually  become  entitled  to  that  sum,  and  pro- 
vided the  defendant  pays  into  Court  ;;^25oo  on  or  before  the  23d 
instant,  all  further  proceedings  in  this  cause  shall  be  stayed  till 
the  fourth  day  of  next  term.  I  further  order,  that,  if  such 
money  is  not  so  paid,  the  summons  dated  December  13th  in- 
stant, be  dismissed  with  costs,  to  be  taxed  by  the  master,  and 
paid  by  the  defendant  to  the  plaintiff,  his  attorney  or  agent. 
Dated,  etc." — a  copy  of  which  last-mentioned  order  was,  on  the 
day  last  aforesaid,  served  on  the  plaintiff  according  to  the  prac- 
tice of  the  said  Court,  and  the  defendant,  on  the  same  day,  did 
undertake  to  pay  interest  to  the  plaintiff  according  to  the  said 
order  ;  of  which  several  premises  the  plaintiff  on  the  day  afore- 
said had  notice  ;  that,  on  December  21st,  the  defendant  did 
duly  pay  into  the  said  Court  ^2500,  according  to  the  last-men- 
tioned order  ;  that,  afterward,  to  wit,  on  the  fourth  day  of  the 
term  next  following  the  last-mentioned  order,  to  wit,  on,  etc., 
the  said  Court  of  Exchequer  made  a  rule  in  the  said  cause, 
which  rule  was  and  is  as  follows — that  is  to  say  [setting  out  a 
rule  calling  upon  the  plaintiff  to  show  cause  why  the  order  of 
Alderson,  B.,  of  December  6th,  should  not  be  set  aside,  upon 
such  terms  as  the  Court  should  direct]— a  copy  of  which  rule 
afterward,  to  wit,  on  the  day  last  aforesaid,  was  duly  served  on 
the  plaintiff  ;  which  rule  was  returned  to  show  cause  before  the 
commencement  of   this   suit  ;  that   afterward,   to   wit,   on  Jan- 


SEC.  II/.]  WADE   i:    SIMEON.  52/ 

uary  27th,  1845,  to  wit,  before  the  commencement  of  this  suit 
the  said  rule  came  on  to  be  heard  before  the  said  Court  of  Ex- 
chequer, etc.,  whereupon  the  said  Court  made  a  rule — being 
the  rule  in  the  said  count  mentioned — that  the  order  of  Alder- 
son,  B.,  made  in  this  cause  on  December  6th  then  last,  should 
be  set  aside  ;  that  the  plaintiff  should  proceed  to  the  trial  of 
this  cause,  and,  in  the  event  of  his  obtaining  a  verdict,  that  he 
should  be  at  liberty  to  enter  up  judgment  thereon  as  of  the 
time  he  would  have  been  entitled  to  enter  up  the  same  under 
the  said  order,  had  not  the  same  been  thereby  set  aside  ;  that 
the  money  paid  into  Court  by  the  defendant,  on  December  21st, 
1844,  should  remain  therein  to  abide  the  event  of  the  trial  ; 
that,  in  case  the  plaintiff  should  ultimately  be  entitled  to  recover 
and  receive  the  same,  he  should  be  entitled  to  charge  the  de- 
fendant with  interest  at  5  per  cent  from  the  time  it  was  so  paid 
in  ;  and  that  the  defendant  should  pay  to  the  plaintiff  the  costs 
of  that  rule,  and  of  the  said  order,  and  of,  and  incidental  to, 
restoring  the  cause  to  the  position  in  which  it  stood  at  the  time 
of  the  date  thereof — a  copy  of  which  rule  was,  to  wit,  on  the  day 
last  aforesaid,  duly  served  on  the  plaintiff  according  to  the  prac- 
tice of  the  said  Court  ;  thai  the  costs  provided  by  the  last-men- 
tioned rule  to  be  paid  by  the  defendant  to  the  plaintiff  were 
afterward,  to  wit,  on  the  day  last  aforesaid,  taxed  by  one  of 
the  masters  at  ^^62  12s.  6d.,  and  were  afterward,  to  wit,  on  the 
day  last  aforesaid,  paid  by  the  defendant  to,  and  received  by 
the  plaintiff  ;  that  the  said  cause  was  still  depending  in  the  said 
Court,  and  that  the  plaintiff,  of  his  own  default,  had  never  pro- 
ceeded to  the  trial  thereof  pursuant  to  the  terms  of  the  last- 
mentioned  rule — verification. 

Special  demurrer  to  the  fourth  plea,  assigning  for  causes, 
that  it  does  not  confess  and  avoid,  or  traverse,  or  deny,  any  of 
the  matters  in  the  first  count  alleged  ;  that  the  matter  pleaded 
affords  no  defence  to  the  cause  of  action  in  that  count  men- 
tioned ;  that  the  plea  sets  up  as  a  defence  immaterial  matter  ; 
that  the  plea  does  not  allege  or  show  that  the  defendant,  before 
or  at  the  time  of  the  making  of  the  promise,  was  not  aware  that 
the  plaintiff  had  no  cause  for  the  said  action,  nor  does  it  allege 
or  show  that  the  plaintiff  concealed  anything  from  the  defend- 
ant ;  that  it  is  ambiguous  and  uncertain  what  is  meant  by 
the  allegation  in  the  plea  that  the  plaintiff  never  had  any 
cause  of  action  against  the  defendant  in  respect  of  the  subject- 
matter  of  the  said  action  ;  that  the  plea  does  not  exclude 
all  other  consideration  for  the  promise  in  the  said  count 
mentioned  ;  that  it  is  ambiguous,  and  uncertain  from  the  plea, 
w^hat    is     the     real     defence    the    defendant    intends    setting 


528  WADE   V.    SIMEON.  [CHAP,  I. 

up  thereby  ;  and  that  the  plea  should   have  concluded   to    the 

country. 

Special  demurrer  to  the  seventh  plea,  assigning  for  causes, 
that  it  does  not  confess  and  avoid,  or  traverse,  or  deny,  the 
promises  in  the  declaration  mentioned  ;  that  the  plea  is  insuffi- 
cient, as  being  an  argumentative  traverse  and  denial  of  the  de- 
fendant's having  made  the  promises  mentioned  in  the  declara-* 
tion  ;  that  it  is  insufficient  as  amounting  to  a  plea  of  non  assump- 
sit to  the  first  count  ;  that  it  is  insufficient  as  amounting  to  a 
plea  of  non  assumpsit  to  the  last  count  ;  that  the  plea  should  have 
concluded  to  the  country  ;  that  the  plea  professes  to  ansvi^er  the 
whole  of  the  promise  in  the  first  count,  but  only  answrers  part 
of  such  promise  ;  that  it  is  not  possible  that  such  promises  as 
those  in  the  declaration  alleged  could  be  deduced  and  implied 
from  the  facts  in  the  plea  alleged  ;  that  the  plea  is  bad  for 
duplicity,  in  first  denying  the  promises  to  have  been  made  as 
alleged  in  the  declaration,  and  afterward  stating  that  they  were 
rescinded  ;  that  it  is  ambiguous,  and  uncertain,  from  the  intro- 
ductory part  of  the  plea,  whether  the  same  is  pleaded  to  the 
whole  of  the  declaration,  or  only  to  the  first  count  ;  that,  if  the 
same  be  taken  as  pleaded  to  the  first  count,  the  same  is  insuffi- 
cient as  attempting  afterward  to  answer  the  cause  of  action  in 
the  last  count  mentioned  ;  that  it  is  insufficient  as  showing  that 
the  Court  of  Exchequer,  without  any  power,  authority,  or  juris- 
diction whatsoever,  and  without  any  consent  on  the  plaintiff's 
part,  revoked  and  rescinded  the  promises  in  the  declaration 
rnentioned  ;  and  that,  though  it  may  confess  the  promises  to 
have  been  made,  it  does  not  show  anything  to  avoid,  discharge, 
release,  or  satisfy  the  causes  of  action  in  the  declaration  men- 
tioned. 

The  defendant  joined  in  demurrer. 
Channell  in  support  of  the  demurrers. 
Kinglake  (with  whom  was  Barstow),  contra. 

TiNDAL,  C.J,  The  only  question  now  remaining  is  upon  the 
demurrer  to  the  fourth  plea.  I  am  of  opinion  that  the  fourth 
plea  is  a  good  and  valid  plea,  on  general  demurrer.  The  decla- 
ration alleges  that  the  plaintiff  had  commenced  an  action  against 
the  defendant  in  the  Exchequer,  to  recover  two  sums  of  ;^  1300  and 
jQtoo  respectively,  which  action  was  about  to  be  tried,  and  that, 
in  consideration  that  the  plaintiff  would  forbear  proceeding  in 
that  action,  until  December  14th  then  next,  the  defendant  prom- 
ised the  plaintiff  that  he  would  on  that  day  pay  the  money,  with 
interest  and  costs  ;  that  the  plaintiff,  confiding  in  the  defend- 
ant's promise,  forbore  prosecuting  the  action,  and  stayed  the 
proceedings  until  the  day  named  ;  but  that  the  defenriant  did 


SEC.  II/.]  WADE   V.    SIMEON,  529 

not  pay  the  money  or  the  costs.  The  fourth  plea  states  that 
the  plaintiff  never  had  any  cause  of  action  against  the  defendant 
in  respect  of  the  subject-matter  of  the  action  in  th«  Court  of 
Exchequer,  which  he,  the  plaintiff,  at  the  time  of  the  commence- 
ment of  the  said  action,  and  thence  until  the  time  of  the  making 
the  promise  in  the  first  count  mentioned,  well  knew.  By  de- 
murring to  that  plea,  the  plaintiff  admits  that  he  had  no  cause 
of  action  against  the  defendant  in  the  action  therein  mentioned, 
and  that  he  knew  it.  It  appears  to  me.  therefore,  that  he  is 
estopped  from  saying  that  there  was  any  valid  consideration 
for  the  defendant's  promise.  It  is  almost  contra  bonos  inores^  and 
certainly  contrary  to  all  the  principles  of  natural  justice,  that  a 
man  should  institute  proceedings  against  another,  when  he  is 
conscious  that  he  has  no  good  cause  of  action.  In  order  to  con- 
stitute a  binding  promise,  the  plaintiff  must  show  a  good  con- 
sideration, something  beneficial  to  the  defendant,  or  detrimental 
to  the  plaintiff.  Detrimental  to  the  plaintiff  it  cannot  be,  if  he 
has  no  cause  of  action  ;  and  beneficial  to  the  defendant  it  can- 
not be  ;  for,  in  contemplation  of  law,  the  defence  upon  such  an 
admitted  state  of  facts  must  be  successful,  and  the  defendant 
will  recover  costs,  which  must  be  assumed  to  be  a  full  compen- 
sation for  all  the  legal  damage  he  may  sustain.  The  considera- 
tion, therefore,  altogether  fails.  On  the  part  of  the  plaintiff  it 
has  been  urged,  that  the  cases  cited  for  the  defendant  were  not 
cases  where  actions  had  already  been  brought,  but  only  cases 
of  promises  to  forbear  coftimencing  proceedings.  I  must,  how- 
ever, confess  that,  if  that  were  so,  I  do  not  see  that  it  would 
make  any  substantial  difference.  The  older  cases,  and  some  of 
the  modern  ones,  too,  do  not  afford  any  countenance  to  that 
distinction.  In  Tooley  v.  Windham,  Cro.  Eliz.  206,  it  is  stated 
that  the  plaintiff  had  purchased  a  writ  out  of  Chancery  against 
the  defendant,  to  the  intent  to  exhibit  a  bill  against  him  ;  upon 
the  return  of  the  writ,  which  was  for  the  profits  of  certain  lands, 
which  the  father  of  the  defendant  had  taken  in  his  lifetime,  the 
defendant,  in  consideration  he  would  surcease  his  suit,  prom- 
ised to  him  that,  if  he  could  prove  that  his  father  had  taken  the 
profits,  or  had  the  possession  of  the  land  under  the  title  of  the 
father  of  the  plaintiff,  he  would  pay  him  for  the  profits  of  the 
land  ;  and  the  Court  held  that  the  promise  was  without  consid- 
eration and  void.  There  the  suit  was  in  existence  at  the  time 
of  the  making  of  the  promise.  So  in  Atkinson  v.  Settree, 
Willes,  482,  an  action  had  been  commenced  at  the  time  the 
promise  was  made.  These  cases  seem  to  me  to  establish  the 
principle  upon  which  our  present  judgment  rests  ;  and  I  am  not 
aware  that  it  is  at  all  opposed  by  Longridge  v.  Dorville.     It 


530  WADE   V.    SIMEON.  [cHAP.  1. 

mav  be  that  the  peculiar  circumstances  of  that  case  took  it  out 
of  the  general  rule.  The  ship  was  under  detention  by  virtue  of 
process  from  the  Admiralty  Court  :  the  event  of  the  suit  in  that 
Court  was  uncertain  ;  neither  party  could  foresee  the  result  ; 
and  therefore  the  relinquishment  by  the  plaintiff  of  his  hold 
upon  the  ship  might  well  be  a  good  consideration  for  the  prom- 
ise declared  on.  Here,  however,  there  was  no  uncertainty  ;  the 
defendant  asserts,  and  the  plaintiff  admits,  that  there  never  was 
any  cause  of  action  in  the  original  suit  and  that  the  plaintiff 
knew  it.  I  therefore  think  the  fourth  plea  affords  a  very  good 
answer,  and  that  the  defendant  is  entitled  to  judgment  thereon. 
Maule,  J.  I  also  am  of  opinion  that  the  defendant  is  entitled 
to  judgment  on  the  fourth  plea,  though  I  think  it  extremely 
questionable  whether  that  plea  is  not  open  to  objection  provided 
it  were  rightly  taken.  Forbearance  to  prosecute  a  suit  in  which 
the  plaintiff  has  no  cause  of  action  (and  in  which,  as  the  Lord 
Chief  Justice  properly  adds,  he  must  eventually  fail),  according 
to  the  authorities,  is  no  consideration.  It  is  no  benefit  to  the 
defendant,  and  no  detriment  to  the  plaintiff.  Costs  are  consid- 
ered by  the  law  a  sufficient  indemnification  for  a  defendant  who 
is  sued,  where  there  exists  no  cause  of  action,  consequently  the 
defendant  in  contemplation  of  law  derives  no  benefit  from  a 
stay  of  the  proceedings.  In  Smith  v.  Monteith  it  seems  to  have 
been  considered  that  the  allegation  in  the  plea — that  the  plain- 
tiff had  not  any  claim  or  demand  or  cause  of  action  against  the 
original  defendant,  in  respect  whereof  the  plaintiff  was  entitled 
to  recover  the  sum  which  the  defendant  promised  to  pay — did 
not  sufficiently  show  that  the  plaintiff  must  necessarily  have 
failed  in  the  original  action  ;  and  it  may  be  doubted  whether 
the  fourth  plea  here  does  sufficiently  show  that  there  was  no 
consideration  for  the  defendant's  promise,  by  reason  of  the 
plaintiff  having  no  cause  of  action  in  the  former  suit,  and  that, 
therefore,  he  must  necessarily  have  failed  in  that  suit.  That 
objection  would,  I  think,  have  shown  the  fourth  plea  pleaded 
in  this  case,  to  be  bad,  provided  the  objection  had  been  prop- 
erly pointed  out  as  a  cause  of  demurrer.  But,  on  general  de- 
murrer, I  think  the  plea  must  be  taken  impliedly  to  allege  that 
the  plaintiff  must  necessarily  have  failed,  and  is,  therefore, 
sufficient,  the  absence  of  a  direct  allegation  to  that  effect  being 
only  ground  of  special  demurrer.  It  has  been  contended  that 
this  objection  is  specially  pointed  out  by  that  part  of  the  de- 
murrer which  objects  to  the  plea  on  the  ground  that  it  is  am- 
biguous. That,  however,  is  not,  in  my  opinion,  a  sufficient 
assignment  of  this  cause  of  demurrer  within  the  statute. 
Though   I   feel  bound  to  state  my  opinion,  I   confess   I  should 


SEC.  Il/.J  WADE   V.    SIMEON.  53 1 

not  be  much  surprised  if  a  court  of  error  should  come  to  a  differ- 
ent conclusion  upon  the  doubt  suggested. 

Cressweli,  J.  The  declaration  in  this  case  is  founded  upon 
a  promise  by  the  defendant  to  pay  certain  moneys  in  considera- 
tion of  the  plaintiff's  forbearing  to  proceed  with  an  action  pend- 
ing in  the  Court  of  Exchequer.  The  answer  set  up  by  the 
fourth  plea  is,  that  the  plaintiff  never  had  any  cause  of  action 
against  the  defendant  in  respect  of  the  subject-matter  of  that 
suit,  which  the  plaintiff  well  knew.  It  has  been  surmised,  in 
the  course  of  the  argument,  that  there  is  a  distinction  between 
abstaining  from  commencing  an  action  and  forbearing  to  prose- 
cute one  already  commenced.  In  the  older  cases  I  find  no  such 
distinction.  Lord  Coke  lays  it  down  broadly  that  the  staying 
of  an  action  that  has  been  unjustly  brought  is  no  consideration 
for  a  promise  to  pay  money.  I  cannot  help  thinking,  on  gen- 
eral principles,  that  the  staying  proceedings  in  an  action  brought 
without  any  cause  is  no  good  consideration  for  a  promise  such 
as  is  relied  on  here.  The  plea,  in  plain  terms,  avers  that  the 
plaintiff  never  had  any  cause  of  action,  and  that  he  well  knew 
it.  Are  we  to  assume  that  the  defendant  might,  by  some  slip 
in  pleading,  have  failed  in  his  defence  to  that  action,  if  it  had 
proceeded  ?  I  think  not.  On  general  demurrer  the  plea  ap- 
pears to  me  to  be  sufficient,  and  none  of  the  causes  of  demurrer 
specially  assigned,  in  my  judgment,  hits  the  point  made  by  my 
Brother  Channell. 

Erle,  J.  It  appears  to  me  also  that  the  fourth  plea  is  suffi- 
cient. The  declaration  states  that  the  plaintiff  had  commenced 
an  action  against  the  defendant  in  the  Court  of  Exchequer  to 
recover  certain  moneys,  that  the  defendant  had  pleaded  various 
pleas  on  which  issues  in  fact  had  been  joined,  which  were  about 
to  be  tried,  and  that,  in  consideration  that  the  plaintiff  would 
forbear  proceeding  in  that  action  until  a  certain  day  the  de- 
fendant promised  to  pay.  The  issues  joined  on  that  record, 
therefore,  were  perfectly  well  known  and  ascertained.  The 
defendant  pleads  that  the  plaintiff  never  had  any  cause  of  action 
against  him  in  respect  of  the  subject-matter  of  the  action  in  the 
Exchequer,  which  he  the  plaintiff,  at  the  time  of  the  commence- 
ment of  the  action,  and  thence  until  the  time  of  the  promise 
well  knew.  I  think  the  plea  must  be  read  as  importing  a  distinct 
allegation,  that,  upon  the  issues  joined  in  that  action,  whether 
of  fact  or  of  law,  the  plaintiff  must  have  failed.  Construing 
the  plea  in  this  way,  I  think  it  is  a  good  plea,  at  least  on  general 
demurrer,  and  that  the  defendant  is  entitled  to  judgment  thereon. 

Judgment  for  the  defendant  on  the  fourth  plea,  and  for  the 
plaintiff  on  the  seventh  plea. 


532  OLDERSHAW   AND    MUSKET   V.    KING.  [CHAP. 


MARIA   OLDERSHAW   and   ROBERT    MUSKET,    Execu- 

TRix  AND  Executor  of  ROBERT  OLDERSHAW  v. 

WILLIAM    THOMAS    KING. 

In  the  Exchequer,  May  23,  1857. 

In  the  Exchequer  Chamber,  June  22,  23,  1857. 

{^Reported  in  2  Hurlstone  &=  Norman  399,  517.] 

This  was  a  special  case  stated  for  the  opinion  of  the  Court. 

The  action  was  brought  by  the  plaintiffs,  as  executrix  and 
executor  of  Robert  Oldershaw,  to  recover  the  sum  of  ^731 
gs.  T,d.  upon  the  defendant's  guarantee. 

In  August,  1848,  John  and  Joseph  Francis  King  being  in- 
debted to  the  testator,  Robert  Oldershaw,  who  was  their  attor- 
ney, in  a  considerable  sum  of  money,  applied  to  him  for  further 
advances,  which  he  declined  to  make  unless  he  had  the  defend- 
ant's guarantee.  The  defendant,  after  some  correspondence 
and  two  interviews  with  the  testator,  R.  Oldershaw,  signed  the 
following  memorandum  : 

"  21  Manchester  Terrace,  August  24,  1848. 

*'  Dear  Sir  :  I  am  aware  that  my  uncles,  J.  and  J.  F.  King, 
stand  considerably  indebted  to  you  for  professional  business, 
and  for  cash  lent  and  advanced  to  them,  and  that  it  is  not  in 
their  power  to  pay  you  at  present;  and  as  in  all  probability  they 
will  become  still  further  indebted  to  you,  though  I  by  no  means 
intend  that  this  letter  shall  create  or  imply  any  obligation  on 
your  part  to  increase  your  claim  against  them,  I  am  willing  to 
bear  you  harmless  against  any  loss  arising  out  of  the  past  or 
future  transactions  between  you  and  my  said  uncles  to  a  certain 
extent,  and  therefore  in  consideration  of  your  forbearing  to 
press  them  for  the  immediate  payment  of  the  debt  now  due  to 
you,  I  hereby  engage  and  agree  to  guaranty  you  the  payment 
of  any  sum  they  may  be  indebted  to  you  upon  the  balance  of 
accounts  between  you  at  any  time  during  the  next  six  years,  to 
the  extent  of  ^1000,  whenever  called  upon  by  you  to  pay  the 
same,  and  after  twelve  calendar  months'  previous  notice. 
"  I  remain,  etc., 

"  William  Thomas  King." 

"  To  Robert  Oldershaw,  Esq." 

The   above  guarantee   was   handed    to    the    testator,   Robert 
Oldershaw,  on  August  25th,  1848,  on  which  day  he  advanced  to 


SEC.   II/.]  OLDERSIIAW    AND    MUSKET   t'.    KING.  533 

John  and  Joseph  Francis  King  ^170.  Previously  thereto  he 
had  advanced  to  them  ^513  in  money.  After  August  25th, 
1848,  he  paid  to  John  and  Joseph  Francis  King  various  sums, 
amounting  in  the  whole  to  ;!^52o.  The  transactions  went  on  till 
July  loth,  1849,  when  John  and  Joseph  Francis  King  became 
bankrupts.  At  the  date  of  theyft?/"  there  was  due  from  the  said 
John  and  J.  F.  King  to  the  testator,  Robert  Oldershaw,  ^^2184 
16s.  41/. 

After  the  realization  of  the  securities  in  the  hands  of  the 
testator,  and  the  receipt  of  a  dividend  under  the  estate  of  John 
and  J.  F.  King,  there  remained  due  to  the  plaintiffs,  as  execu- 
trix and  executor  of  the  said  Robert  Oldershaw,  who  died  in 
May,  1851,  the  sum  of  ;!^73i  9^^.  3^/. ;  and  on  June  6th,  1854,  the 
plaintiffs  gave  notice  to  the  defendant  that  the  said  sum  of 
^731  9.^.  3^/.  was  due  and  owing,  and  requested  him,  under  the 
terms  of  his  guarantee,  to  pay  the  amount  of  the  same  to  them. 

It  is  agreed  between  the  parties  that  all  things  necessary  to 
be  done,  and  all  conditions  precedent,  have  been  performed  and 
tulfilled,  and  all  times  have  elapsed  necessary  to  enable  the 
plaintiff  to  recover  the  said  sum  of  ^731  9^'.  3d.,  provided  the 
Court  shall  be  of  opinion  that  the  defendant,  under  the  said 
memorandum  and  facts  above  stated,  is  liable  to  pay  the  same. 

The  questions  for  the  opinion  of  the  Court  are  :  First, 
whether,  on  the  above  facts,  the  defendant  is  liable  or  not  ; 
and,  secondly,  to  what  extent. 

Knowles  (with  whom  was  W.  M.  Cooke)  for  the  plaintiff. 

Fetersdorff  for  the  defendant. 

The  Court  having  differed  in  opinion,  the  following  judg- 
ments were  now  delivered. 

Bramwell,  B.  My  Brother  Watson  and  myself  are  of  opinion 
that  the  defendant  is  entitled  to  judgment.  The  consideration 
mentioned  for  the  defendant's  promise  is  forbearing  to  press 
for  the  immediate  payment  of  the  debt  now  due  ;  and  this  in 
our  judgment  is  void  for  uncertainty.  The  authorities  which, 
have  been  referred  to  show  that  a  guarantee  in  consideration 
of  forbearance  "for  some  time,"  or  "  a  little  time,"  is  void. 
In  the  present  case,  the  word  is  "  immeaiate."  That  cannot 
mean  "  instantaneous,"  and  anything  beyond  is  uncertain.  It 
was  argued  that,  no  time  being  named,  it  was  to  be  taken  to 
be,  that  a  reasonable  time  was  intended.  That  is  not  so,  as  it 
is  to  "  forbear  to  press  for  immediate  payment  ;"  not  forbear 
for  a  reasonable  time.  However,  assuming  it  were  so,  that  is 
equally  vague  and  uncertain.  In  the  result  one  may  be  able  to 
say  in  each  particular  case  if  the  creditor  has  waited  a  reason- 
able time  ;  but  it  is  impossible  to  lay  down  a  rule  as  to  what 


534  OLDERSHAW   AND    MUSKET   V.    KING.  [CHAP.  I. 

does  or  does  not  constitute  such  a  time  between  a  debtor  and 
creditor  ;  and  accordingly  it  was  so  lield  in   Semple  v.    Pink, 

1  Exch.  74,  where  the  reasoning  of  Alderson,  B.,  and  the  re- 
mark of  Rolfe,  B.,  are  to  the  effect  that  such  a  guarantee,  as 
stated  in  the  declaration  in  that  case,  is  void  for  uncertainty. 
Then,  whether  this  consideration  be  read  to  be  to  forbear  for  a 
reasonable  time,  or  to  forbear  to  press  for  immediate  payment, 
it  is  void.  Mapes  v.  Sidney,  Cro.  Jac.  6S3,  will  not  help  the 
plaintiff  on  either  ground  of  its  decision,  for  here  the  agreement  to 
forbear  is  not  absolute,  nor  is  Lord  Hobart's  reason  applicable, 
as  the  consideration  for  the  agreement  must  now  be  in  writing. 

But  it  was  said  that  the  guarantee  contemplated  the  possi- 
bility of  future  advances,  and  that  as  a  guarantee  saying,  "  I 
will  pay  anything  you  advance  to  A,"  without  saying  why, 
would    be    good  ;    and    as    it    appears    by    Wood    v.    Benson, 

2  C.  &  J.  94,  that  a  guarantee  may  be  good  for  a  future,  and 
bad  for  a  past,  debt,  so  may  this  guarantee  be  good  for  the 
future,  though  not  for  the  past  debt.  But  we  are  of  opinion 
that  as  the  consideration  expressly  mentioned  is  forbearance, 
the  promise  cannot  (as  in  the  case  cited)  be  referred  to  what 
otherwise  no  doubt  might,  by  necessary  implication,  be  taken 
to  be  the  consideration.  It  is  clear  that  if  the  guarantee  had 
been  "  in  consideration  you  will  forbear  for  a  month,"  that 
would  be  at  least  a  part  of  the  consideration,  and  performance 
of  it  would  have  had  to  be  averred,  as  of  a  condition  precedent  ; 
and  it  is  not  the  less  so  here  because  the  consideration  is  void 
for  uncertainty.  Again,  the  agreement  is  to  pay  the  sum  due 
"on  balance  of  accounts,"  so  that  the  defendant  was  to  be 
liable  for  nothing  other  than  a  sum  in  which  the  old  debt  was 
taken  into  account. 

We  are  of  opinion,  therefore,  that  the  plaintiffs  are  not  en- 
titled to  recover,  and  we  cannot  help  adding,  that  though  we 
doubt  not  that  the  intention  of  the  testator  was  perfectly  fair, 
as  indeed  is  shown  by  the  indulgence  he  gave,  and  that  he  de- 
sired not  to  tie  himself  up,  only  because  of  the  loss  which  might 
thereby  accrue,  still  that  he  did  endeavor  to  get  a  binding 
promise  without  giving  any  consideration  for  it,  and  in  reality 
fails  in  consequence.  What  the  defendant  substantially  bar- 
gained for  was  forbearance  to  the  principal  debtor,  and  to  this 
he  never  had  a  right,  though  it  was  granted  in  fact. 

Pollock,  C.B.  I  regret  very  much  that  I  am  compelled  to 
■differ  from  the  rest  of  the  Court,  but  it  appears  to  me  that  the 
plaintiff  is  entitled  to  our  judgment,  and  this  whether  we  look 
at  the  authorities  on  the  subject  or  at  the  reasonable  construc- 
tion which  is  to  be  put  on  the  letter  of  guarantee  with  reference 


SEC.  II/.]  OLDERSHAW   AND    MUSKET  V.    KING.  535 

to  the  whole  matter  to  which  it  relates.  (His  Lordship  then 
read  the  guarantee.)  1  think  a  mercantile  instrument  such  as 
this  is  ought  not  to  be  read  and  construed  with  the  strictness 
with  which  a  declaration  or  plea  might  be.  We  ought  (in  my 
judgment)  to  see  whether  the  parties  have  so  expressed  them- 
selves as  to  show  that  there  was  a  guarantee,  and  for  what,  and 
upon  what  consideration.  By  the  Statute  of  Frauds  such  an 
undertaking  must  be  in  writing,  and  I  do  not  intend  to  ques- 
tion the  case  of  Wain  v.  Warlters,  5  East,  10,  that  the  consider- 
ation for  the  promise  must  appear  as  well  as  the  promise  itself, 
but,  as  there  is  in  reality  a  consideration  in  this  contract  which 
is  not  expressed,  it  appears  to  me  that  effect  ought  to  be  given 
to  it,  so  that  the  agreement  between  the  parties  should  be  car- 
ried into  effect.  The  defendant  undoubtedly  intended  to  prom- 
ise something,  and  for  a  consideration.  On  the  faith  of  that 
promise  the  plaintiff  has  advanced  money  and  given  credit,  and 
I  think,  unless  we  are  compelled  by  reason  or  authority  to  de- 
cide against  the  plaintiff,  we  ought  to  give  effect  to  what  un- 
doubtedly was  intended  between  the  parties.  It  is  said  that  a 
consideration  being  expressed,  we  must  take  what  is  expressed 
to  be  the  real,  true,  and  only  consideration,  and  that  we  cannot 
notice  any  other  that  is  not  expressed.  I  do  not  feel  the  force 
of  that  remark,  and  the  rather  because  the  consideration  ex- 
pressed is  said  to  be  no  consideration  at  all  ;  had  there  been 
no  consideration  expressed  at  all,  it  is  clear  from  several  cases 
(which  it  is  unnecessary  to  cite)  that  the  advance  of  money  and 
the  incurring  of  a  further  debt  would  (though  not  expressed) 
have  been  a  good  consideration  for  the  promise  to  pay  the  debt 
arising  out  of  such  future  transactions.  I  cannot  see  the  good 
sense  or  the  justice  of  at  the  same  time  deciding  that  the  con- 
sideration stated  is  no  consideration,  and  therefore  will  not  sup- 
port the  promise,  and  yet  it  is  sufficient  to  prevent  us  from 
looking  at  the  agreement  and  seeing  that  it  contains  a  real,  sub- 
stantial, and  good  consideration,  upon  which  the  promise  (at 
least  as  far  as  future  transactions  are  concerned)  may  be  en- 
forced. It  seems  to  me  not  to  be  good  law,  or  logic,  to  say  that 
it  is  a  consideration  and  that  it  is  no  consideration,  and  this  to 
defeat  the  real  and  honest  intention  of  the  parties  (of  one  of 
them  at  least)  ;  and  it  seems  to  me  we  ought  to  construe  the 
agreement  ut  res  magis  valeat  quam  pereat ;  and  if  what  is  stated 
to  be  the  consideration  is  no  consideration  at  all,  we  ouglit  to 
see  whether  there  is  not  another  consideration  which  will  render 
the  agreement  sensible  and  available  quoad  future  dealings  (at 
least).  In  the  case  of  Johnston  v.  Nicholls,  i  C.  B.  251,'  the 
'  E.  C.  L.  R.  Vol.  L. 


536  OLDERSHAW   AND    MUSKET   V.    KING.  [CHAP.  I. 

guarantee  was  in  these  words  :  'As  you  are  now  about  to  enter 
upon  transactions  in  business  with  C,  with  whom  you  have 
already  had  dealings,  in  the  course  of  which  C  may  from  time 
to  time  become  largely  indebted  to  you  ;  in  consideration  of 
your  doing  so  I  hereby  agree  to  be  responsible  to  you  for,  and 
guaranty  to  you  the  payment  of,  any  sums  of  money  which  C 
nov/  is,  or  may  at  any  time  be  indebted  to  you,  so  that  I  am 
not  called  upon  to  pay  more  than  the  sum  of  ^2000."  There 
the  only  consideration  expressed  was  entering  upon  trans- 
actions, not  saying  for  how  long  ;  here  the  consideration  ex- 
pressed is  forbearing  to  press  for  immediate  payment.  In  the 
case  cited  Maule,  J.,  held  the  consideration  to  mean  substan- 
tially that  the  plaintiffs  would  continue  the  dealings  ;  so  here 
forbearing  to  press  for  immediate  payment  really  means  allow- 
ing the  account  to  go  on,  or  allowing  the  dealings  to  continue, 
and  the  Court  held  that  the  consideration  was  sufficient  to  sup- 
port a  promise  to  pay  the  past  debt,  as  well  as  any  future  debt 
to  be  incurred.  Cresswell,  J.,  took  the  same  view  of  the  con- 
sideration, which  he  held  to  be  continuing  to  have  dealings,  in 
which  Erie,  J.,  concurred.  (See  also  the  case  of  Russell  and 
Another  v.  Moseley,  3  B.  &  B.  211.') 

With  respect  to  so  much  of  the  consideration  as  arose  out  of 
future  advances  and  dealings,  I  am  of  opinion  that  what  is  nec- 
essarily implied  from  the  writing  is  to  be  dealt  with  as  if  it  was 
actually  there  expressed  in  words  at  length' ;  the  implication  is 
not  one  of  law,  it  is  one  of  fact.  It  is  a  necessary  implication 
of  fact  arising  out  of  the  transaction  and  the  language  used  re- 
specting it.  Where  the  law  would  imply  a  contract,  that  shall 
not  prevail  against  an  express  contract  ;  but  it  is  not  implied 
by  law  that  the  future  advances,  if  made,  shall  be  the  consider- 
ation for  a  promise  to  pay  them  by  a  third  person.  It  is  im- 
plied as  a  necessary  conclusion,  not  of  law,  but  of  fact,  that 
that  is  what  the  parties  meant,  and  that  it  is  so  clear,  manifest, 
and  obvious  that  there  is  no  occasion  to  express  it.  I  think, 
therefore,  the  document  is  to  be  read  thus — as  to  past  debts,  in 
consideration  of  your  forbearing  to  press  for  immediate  pay- 
ment, and  as  to  future  dealings,  in  consideration  of  your  con- 
tinuing these  dealings  and  making  advances,  if  you  shall  make 
them,  which  you  are  not  bound  to  do,  I  hereby  undertake,  etc.; 
or  else — as  to  past  debts  and  future  advances,  in  consideration 
of  your  forbearing  to  press  for  immediate  payment,  and  allow- 
ing the  account  to  go  on,  I  undertake  to  pay  the  balance,  con- 
sisting of  either,  not  exceeding  ^1000.  Suppose  a  guarantee 
were  in  these  words — "  I  undertake  without  any  consideration 
'  E.  C.  L.  R.  Vol.  L.  7. 


SEC.  II/.]  OLDERSHAW   AND    MUSKET   V.    KING.  537 

to  pay  for  any  goxDcls  you  may  supply  to  J.  S.  from  the  date  of 
this'' — and  the  goods  were  furnished  to  J.  S.,  could  it  be  suc- 
cessfully contended  that  the  party  giving  the  promise  would 
not  be  bound  to  pay  for  them  on  the  ground  of  there  being  no 
consideration  ?  I  am  of  opinion  in  the  negative,  and  "  without 
any  consideration"  would  be  construed  to  mean  without  any 
other  consideration  than  what  arises  out  of  the  transaction 
itself. 

I  am,  therefore,  without  any  doubt,  of  opinion,  that  effect 
ought  to  be  given  to  this  guarantee  in  respect  of  the  advances 
made  and  the  debts  contracted  since  the  date  of  the  guarantee, 
and  I  incline  to  think  that  effect  ought  to  be  given  to  it  as  to 
the  whole  claim,  but  as  the  majority  of  the  Court  is  of  a  differ- 
ent opinion  the  judgment  must  be  for  the  defendant. 

Judgment  for  the  defendant. 

Error  on  the  judgment  of  the  Court  of  Exchequer  on  a 
special  case.  The  case  and  judgment  of  the  Court  below  are 
reported,  ante,  p. 

Montague  Smith  (with  whom  was  IV.  M.  Cooke)  for  the  plain- 
tiffs. 

Petersdorff  (with  whom  was  /.  P.  Norman)  for  the  defendant. 

CocKBURN,  C.J.,  now  said.  I  am  of  opinion  that  the  judg- 
ment of  the  Court  below  must  be  reversed.  The  question  arises 
on  a  contract  of  guarantee.  (His  Lordship  read  the  defend- 
ant's letter.)  It  was  contended  in  the  Court  below  and  before 
us,  that  looking  at  the  language  of  this  document,  it  must  be 
taken  that  the  contract  was  based  entirely  on  the  consideration 
that  Oldershaw  would  forbear  to  press  for  the  immediate  pay- 
ment of  the  debt  due  to  him  at  the  time  this  letter  was  written  ; 
and  it  was  said  that  the  consideration  was  insufficient,  an  agree- 
ment to  forbear  to  press  for  immediate  payment  being  too  vague 
to  constitute  the  consideration  for  a  promise  ;  and  several 
authorities  were  cited  in  support  of  that  position,  and  particu- 
larly the  case  of  Semple  v.  Pink,  i  Exch.  74.  We  think,  how- 
ever, that  this  is  not  the  true  construction  of  the  contract.  I 
agree  with  what  was  said  by  the  Lord  Chief  Baron  in  the  Court 
below,  that  we  must  not  construe  this  document  with  the  strict- 
ness with  which  we  should  construe  a  pleading,  but  must  look 
to  the  whole  of  the  instrument  in  order  to  see  what  was  the  real 
meaning  of  the  pa:-ties.  Thus,  though  the  words  of  promise  on 
the  part  of  the  defendant  follow  immediately  after  the  words 
"  in  consideration  of  your  forbearing  to  press  them  for  the  im- 
mediate payment  of  the  debt  now  due,"  we  need  not  construe 
the  words  as  we  should  the  statement  of  a  contract  in  a  declara- 


538  OLDERSIIAW   AND    MUSKET   V.    KING.  [CHAP.  I, 

tion.  It  stands  thus,  the  defendant  says,  John  and  Joseph 
Francis  King,  being  indebted  to  you  for  professional  business, 
and  cash  lent  and  advances,  and  you  having  the  right  to  close 
the  account  and  insist  on  immiediate  payment,  if,  instead  of 
doing  so,  you  will  leave  the  account  open,  and  make  further  ad- 
vances, although  I  do  not  ask  you  to  bind  yourself  to  do  so,  still, 
if  you  do  so,  I  will  be  responsible  to  you  to  the  extent  of  ^looo. 
The  consideration  is  not  simply  the  forbearing  to  press  for  im- 
mediate payment,  but  also  the  future  advances,  which,  though 
not  stipulated  for,  were  contemplated  by  the  parties.  But  sup- 
posing that  the  sole  consideration  was  the  forbearing  to  press 
for  immediate  payment,  I  should  not  be  prepared  to  assent  to 
the  doctrine  laid  down  in  Semple  v.  Pink.  These  are  authori- 
ties for  saying  that  an  agreement  to  forbear  for  a  short  time, 
or  a  little  time,  is  too  indefinite  to  constitute  a  consideration 
for  a  contract  ;  but  I  am  not  at  all  prepared  to  assent  to  the 
proposition  that  an  agreement  to  forbear  for  a  reasonable  time 
would  not  be  sufficient.  I  see  no  reason  why  the  question  as 
to  what  is  a  reasonable  time  should  not  be  considered  and  de- 
termined with  reference  to  the  circumstances  of  the  case  by  a 
jury.  As,  however,  in  the  view  I  take  of  this  case,  the  contract 
discloses  a  sufficient  consideration  independently  of  such  for- 
bearance, it  is  not  necessary  to  go  the  length  of  overruling 
Semple  v.  Pink. 

Erle,  J.  I  concur  in  the  opinion  expressed  by  the  Lord 
Chief  Baron  in  the  Court  below,  and  the  Lord  Chief  Justice  in 
this  Court,  and  therefore  I  think  that  the  judgment  of  the 
majority  of  the  Court  below  ought  to  be  reversed.  The  first 
question  is  upon  the  construction  of  the  document,  whether  it 
is  a  contract  in  consideration  of  time  being  given  by  the  cred- 
itor to  the  debtor,  or  a  contract  in  consideration  of  time  being 
so  given,  and  further  advances  to  be  made  ?  Looking  at  the 
whole  letter,  and  the  circumstances  under  which  it  was  written, 
and  considering  the  importance  of  further  advances,  I  come  to 
the  conclusion  that  the  consideration  contemplated  was,  that 
further  advance  should  be  made,  and  time  given  by  the  cred- 
itor before  he  would  press  for  the  payment  of  the  existing  debt. 
Though  the  contract  did  not  bind  the  creditor  to  make  further 
advances,  or  to  give  time  unless  he  chose  to  do  so,  it  is  clear 
that  if  he  did  make  the  advances  and  did  give  time,  that  which 
was  contingent  at  the  time  when  the  instrument  was  written 
became  an  absolute  and  binding  contract.  I  am  also  of  opin- 
ion, that  although  the  amount  of  further  advances,  and  of  the 
time  to  be  given  is  not  defined,  still,  if  time  is  given  and  ad- 
vances are  made,  it  is  enough.     These  undefined   terms  ought 


SEC.  11/.]  OLDERSIIAW   AND    MUSKET   V.    KING.  539 

to  receive  a  construction  in  reference  to  the  facts  given  in  evi- 
dence///  res  magis  valcat  qttam pcrcat.  If  the  guarantor  has  had 
the  advantage  he  bargained  for,  we  must  hold  him  to  liis  prom- 
ise. That  suffices  for  the  judgment  of  reversal  in  the  present 
case.  I  concur  witli  the  Lord  Chief  Justice  with  respect  to  the 
case  of  Semple  v.  Pink,  i  Exch.  74.  I  do  not  assent  to  the  doc- 
trine that  a  guarantee  in  consideration  of  an  agreement  to  give 
time  is  void  unless  the  time  to  be  given  is  defined  in  the  con- 
tract.    But  it  is  not  necessary  to  decide  tliat  point. 

Williams,  J.  I  am  of  the  same  opinion.  I  think  that  the 
case  involves  no  question  of  law  at  all.  It  merely  turns  on  the 
construction  of  the  guarantee.  In  my  opinion,  the  true  mean- 
ing of  the  instrument  is,  that  the  defendant  contracted  with 
Oldershaw  that  if,  vvitliout  pressing  for  immediate  payment,  he 
would  continue  his  transactions  uninterruptedly  with  the  de- 
fendant's uncle,  that  the  defendant  would  guaranty  the  pay- 
ment of  the  balance  of  their  account  at  any  time  within  six 
years,  to  the  extent  of  ;^iooo.  If  that  was  the  true  construc- 
tion of  the  agreement,  then  the  holding  it  valid  is  in  accordance 
with  all  the  authorities  cited  in  the  argument. 

Crompton,  J.  I  do  not  disagree  with  the  result  of  the  judg- 
ments which  have  been  delivered,  but  I  am  bound  to  say  that 
I  differ  from  the  rest  of  the  Court  as  to  the  construction  of  this 
contract.  I  think  the  view  taken  of  the  meaning  of  the  parties 
by  my  Brother  Bramwell  in  his  judgment  is  the  correct  one.  I 
agree  that  we  must  see  what  is  the  promise  and  what  is  the  con- 
sideration upon  which  it  is  founded,  and  that  to  ascertain  this, 
we  may  look  at  all  the  facts  of  the  case.  And  I  quite  agree 
with  the  doctrine  established  in  the  case  of  Johnston  v.  Nicholls, 
I  C.  B.  251,'  that  where  there  is  a  consideration,  that  is  suffi- 
cient to  support  a  promise  to  guaranty  either  past  or  future 
debts.  My  Brother  Maule  puts  the  case  on  the  true  ground — 
viz.,  that  the  substance  of  such  a  contract  as  the  present  is,  that 
in  consideration  that  the  plaintiffs  will  do  something  in  future, 
the  defendants  promise,  in  like  manner,  to  do  something  in 
future.  Here,  supposing  that  the  consideration  is  good,  it  is 
clear  it  would  support  a  promise  to  pay  the  balance,  whether 
arising  from  new  or  old  debts.  Then  what  is  the  consideration  ? 
The  answer  to  that  question  does  not  depend  on  any  technical 
rule,  but  on  a  consideration  of  the  whole  document  as  a  mer- 
cantile instrument,  treating  that  which  the  parties  have  ex- 
pressed in  words  as  that  which  they  really  intended  to  express. 
I  think  the  meaning  is,  if  you  forbear  to  press  for  the  immediate 
payment  of  the  old  debt,  I  will  agree  to  guaranty  the  balance, 
'  E.  C.  L.  R.  Vol.  L. 


540  OLDERSHAW   AND    MUSKET   V.    KING.  [CHAP.  I. 

whether  it  remain  the  same  or  whether  it  is  added  to.  There 
are  not  two  promises.  It  is  one  promise  to  pay  the  balance, 
whether  arising  from  fresh  dealings  or  from  the  former  deal- 
ings. It  is  said  to  be  part  of  the  understanding  that  there 
should  be  fresh  dealings  ;  but  I  think  that  is  not  so,  and  that 
the  parties  meant  the  promise  to  apply,  whether  there  were 
fresh  dealings  or  not.  To  construe  the  document  otherwise 
seems  to  me  to  be  putting  a  meaning  upon  it  different  from  that 
which  the  parties  intended.  Oldershaw  is  not  to  engage  him- 
self to  make  further  advances,  and  it  is  clear  to  my  mind  that 
the  defendant  engaged  to  pay,  if  Oldershaw  gave  time  ;  and, 
on  the  other  hand,  if  Oldershaw  did  not  give  time,  that  no 
action  could  have  been  maintained  on  this  guarantee,  notwith- 
standing that  he  made  fresh  advances.  Therefore,  it  seems  to 
me  that  the  parties  did  not  intend  it  to  be,  and  we  should  be 
altering  the  contract  if  we  make  it  a  part  of  the  consideration 
for  the  promise  that  there  should  be  any  fresh  dealings.  The 
consideration  was  that  Oldershaw  should  not  press  for  imme- 
diate payment,  and  I  think  that  the  giving  a  reasonable  time  is 
a  sufficient  consideration.  In  the  old  authorities  mentioned  in 
Comyn,  it  is  said  to  be  sufficient  if  there  is  an  agreement  for 
forbearance  for  a  definite  portion  of  time,  or  for  a  reasonable 
time  ;  and  in  Payne  v.  Wilson,  7  B.  &  C.  423,'  Lord  Tenterden 
rests  his  judgment  on  the  ground  that  it  must  be  taken  that  the 
plaintiff  had  suspended  proceedings  for  "  a  definite  or  reason- 
able time."  I  do  not  see  any  great  difficulty  in  saying  that 
what  is  a  reasonable  time  may  be  determined  at  tiisi prius.  It 
may  be  difficult  to  say  what  a  reasonable  time  is,  but  the  diffi- 
culty is  not  greater  than  in  many  other  cases  where  there  is  a 
promise  to  do  a  thing  in  a  reasonable  time.  And  the  only  dis- 
tinct authority  against  that  is  the  case  of  Semple  v.  Pink.  The 
Court,  however,  in  that  case  had  really  to  decide  whether  there 
was  a  variance  between  the  guarantee  proved  and  that  set  out 
in  the  declaration.  If  I  had  to  decide  that  case  now,  I  should 
be  inclined  to  say  that  a  reasonable  time  might  be  implied, 
because  no  time  was  mentioned  in  the  contract.  That  was  the 
point  before  the  Court. 

WiLLES,  J.  I  am  of  the  same  opinion.  Assuming  that  we 
are  only  to  look  to  the  words  of  the  document  and  to  see  what 
is  there  stated  as  the  consideration  for  the  contract  without 
regard  to  the  previous  recital  ;  the  consideration  would  appear 
to  be  "  forbearing  to  press  for  the  immediate  payment  of  the 
debt  due."  There  are  many  authorities  which  show  that  in 
cases  like  the  present  the  word  "  immediate"  may  be  construed 
»  E.  C.  L   R.  Vol.  L.  14. 


SEC.  n/.]  OLDERSHAW   AND    MUSKET   7>.    KING.  541 

to  mean  within  a  reasonable  time  to  do  the  act  in  question. 
Accordingly,  I  think,  that  forbearing  to  press  for  immediate 
payment  means  forbearance  for  a  reasonable  time.  Then  it  is 
said  that  that  is  not  a  sufficient  consideration,  because  of  the 
indefiniteness  of  the  word  "  reasonable  ;"  and  because  it  might 
'  be  competent  to  the  person  who  enters  into  a  contract,  engaging 
to  forbear  for  a  reasonable  time,  to  sue  the  next  instant,  or 
within  a  very  short  time.  Looking  for  a  moment  to  the  mode 
in  which  the  question  of  reasonable  or  unreasonable  time  would 
be  determined,  the  difficulty  vanishes.  The  question  whether 
the  creditor  had  forborne  for  a  reasonable  time  or  not  would 
be  determined  by  the  jury.  Now,  suppose  the  consideration 
expressed  had  been  forbearing  for  such  a  time  as  a  jury  who 
might  try  the  question  should  consider  reasonable,  there  can  be 
no  doubt  but  that  it  would  be  a  perfectly  good  contract,  and 
for  a  good  consideration.  That  is  what  is  tacitly  expressed  in 
this  instrument.  There  are  many  cases  in  which  the  reason- 
ableness of  the  time  in  which  to  do  a  thing,  not  being  fixed  by 
legal  decisions,  as  in  the  case  of  the  dishonor  of  a  bill  of  ex- 
change, it  is  left  to  the  jury  as  a  question  of  fact  with  reference 
to  the  circumstances  of  the  particular  case.  I  do  not  see  on 
what  principle  an  agreement  to  forbear  for  a  time  stipulated 
for  by  the  parties  should  not  constitute  a  good  consideration. 
There  are  authorities  to  that  effect.  Com.  Dig.,  Action  on  the 
Case  on  Assumpsit  (B)  (B  i).  In  Payne  v.  Wilson,  7  B.  &  C. 
423,  Lord  Tenterden  seems  to  treat  it  as  clear,  that  the  forbear- 
ance for  a  reasonable  time  would  be  a  sufficient  consideration. 
No  doubt  there  are  authorities  on  the  other  side,  but  if  we  are 
to  choose  between  authorities,  one  class  of  which  tends  to  de- 
feat, and  the  other  class  to  uphold  the  intention  of  the  parties, 
I  should  have  no  difficulty  in  adhering  to  the  latter  class.  The 
construction  pwt  upon  this  instrument  by  my  Brother  Crompton 
was  that  which  first  suggested  itself  to  my  mind  ;  but  I  think 
that  it  is  not  likely  that  the  parties,  in  the  relation  in  which 
they  stood  to  each  other  at  the  time  the  guarantee  was  given, 
looked  to  forbearance  alone  as  the  consideration.  There  is  a 
recital  which  shows  that  it  was  expected  that  the  dealings  would 
continue  between  Oldershaw  and  J.  and  J.  F.  King.  I  find  by 
the  subsequent  part  of  the  instrument,  that  it  was  supposed 
that  they  might  continue  during  six  years  ;  and  then  there  is 
the  suggestion  that  "in  all  probability  they  will  become  still 
more  indebted,"  evidently  expressing  a, desire  that  the  advances 
should  be  continued,  not  binding  the  creditor  to  make  advances, 
but  to  induce  him  to  make  them.  Probably,  therefore,  the 
most  just  construction  of  the  instrument  is  that  which  has  been 


542  THE   ALLIANCE    BANK   V.    BROOM.  [cHAP.  I. 

put  Upon  it  by  my  Lord  Chief  Justice  and  my  Brothers  Erie 
and  Williams.  But  in  either  view  of  the  case  the  plaintiffs  are 
entitled  to  recover,  and  the  judgment  of  the  Court  below  ought 
to  be  reversed  and  judgment  given  for  the  plaintiffs,  both  as  to 
past  and  future  advances. 
Judgment  reversed. 


THE    ALLIANCE    BANK  (Limited)  v.  BROOM. 

In  Chancery,  November   14,  21,  1864. 

{Reported  in  2  Drewry  &<=  Smale  28^.  J 

This  case  came  on  upon  a  demurrer. 

It  appeared,  from  the  bill,  that  in  June,  1864,  the  Alliance 
Bank  opened  a  loan  account  with  the  defendants,  who  are  mer- 
chants at  Liverpool,  and  that  such  loan  account  was  continued 
down  to  September  19th,  1864,  when  there  was  a  balance  due 
from  the  defendants  to  the  bank  on  such  loan  account  to  the 
amount  of  ;^22,205  \k^s.  id. 

On  September  19th,  1864,  the  plaintiffs  requested  the  defend- 
ants, Messrs.  Broom,  to  give  them  some  security  for  the  amount 
so  due,  and  the  defendants,  who  stated  that  they  were  entitled  to 
certain  goods,  wrote  to  the  manager  of  the  bank  the  following 
letter  : 

"  Liverpool,  September  19th,  1864. 

"  Dear  Sir  :  We  hand  you  the  following  particulars  of  prod- 
uce, which  we  propose  to  hypothecate  against  our  loan  account, 
and  at  the  same  time  undertake  to  pay  the  proceeds  as  we  re- 
ceive them,  to  the  credit  of  the  said  account." 

The  letter  then  contained  a  list  of  goods  and  their  values,  and 
was  signed  by  Messrs.  Broom. 

In  pursuance  of  this  letter  the  plaintiffs,  on  September  20th, 
1864,  applied  to  the  defendants  for  the  warrants  for  delivery  of 
the  goods  mentioned  in  the  letter,  and  the  defendants  promised 
to  deliver  the  warrants  to  the  plaintiffs  as  soon  as  they  could 
obtain  them  from  the  warehouses. 

The  bill  stated  that  the  defendants  refused  to  deliver  the 
warrants,  or  other  documents  relating  to-  the  goods,  to  the 
plaintiffs,  and  threatened  and  intended  to  deliver  them  to  other 
persons  ;  and  the  bill  chjarged  that  the  plaintiffs  were  entitled 
to  a  lien  or  charge  upon  the  goods  mentioned  in  the  letter  by 
virtue  of  the  agreement,  and  prayed  for  a  declaration  to  that 
effect.     The  bill  also  prayed  that  the  defendants  might  be  or- 


SEC,   II/.]  THE   ALLIANCE    BANK   V.    BROOM.  543 

dered  to  deliver  to  the  plaintiffs  the  warrants  and  other  docu- 
ments relating  to  the  title  of  said  goods,  and  cause  the  said 
goods  to  be  delivered  to  the  plaintiffs,  by  way  of  security  for 
the  amount  due  to  them  on  the  loan  account.  The  bill  also 
prayed  an  injunction  to  restrain  the  defendants  from  dealing 
with  the  warrants  or  goods  in  the  mean  time. 

To  this  bill  the  defendants  filed  a  demurrer,  on  the  ground 
that  the  agreement  contained  in  the  letter  was  without  consid- 
eration ;  and  therefore  one  which  the  Court  would  not  enforce. 

Daniel  and  J.  N.  Higgins  for  the  defendants. 

Bevir  for  the  plaintiffs. 

The  Vice-Chancellor  reserved  judgment. 

The  Vice-Chancellor  (after  stating  the  facts,  said)  : 

The  defendant  demurs  to  the  plaintiff's  bill  in  this  case,  on 
the  ground  that  the  promise  to  give  securit}^  which  the  plaintiff 
seeks  to  enforce,  was  without  any  consideration — that  it  is,  in 
fact,  a  nudum  pactuf/i,  which  the  Court  will  not  enforce  ;  and  in 
support  of  this  proposition  it  is  argued  that  the  plaintiffs,  so 
far  from  giving  any  consideration  for  the  promise,  could  at  any 
time  have  brought  an  action  for  the  payment  of  the  debt  ;  and 
that  they  could  have  done  so  is  perfectly  true. 

Now,  according  to  the  facts  stated  in  the  bill,  a  demand  was 
made  by  the  creditor  for  security  ;  and  upon  that  demand  a 
promise  and  agreement  was  made  by  the  debtor  that  he  would 
give  such  security  ;  and  that,  although  it  might  take  some  time 
to  get  the  warrants,  he  would  hand  them  over  to  the  creditor 
when  he  obtained  them. 

It  appears  to  me,  that  when  the  plaintiffs  demanded  payment 
of  their  debt,  and,  in  consequence  of  that  application,  the  de- 
fendant agreed  to  give  certain  security,  although  there  was  no 
promise  on  the  part  of  the  plaintiffs  to  abstain  for  any  certain 
time  from  suing  for  the  debt,  the  effect  was,  that  the  plaintiffs 
did,  in  effect,  give,  and  the  defendant  received,  the  benefit  of 
some  degree  of  forbearance  ;  not,  indeed,  for  any  definite  time, 
but,  at  all  events,  some  extent  of  forbearance.  If,  on  the  appli- 
cation for  security  being  made,  the  defendant  had  refused  to 
give  any  security  at  all,  the  consequence  certainly  would  have 
been  that  the  creditor  would  have  demanded  payment  of  the 
debt,  and  have  taken  steps  to  enforce  it.  It  is  very  true  that, 
at  any  time  after  the  promise,  the  creditor  might  have  insisted 
on  payment  of  his  debt,  and  have  brought  an  action  ;  but  the 
circumstances  necessarily  involve  the  benefit  to  the  debtor  of  a 
certain  amount  of  forbearance,  which  he  would  not  have  derived 
if  he  had  not  made  the  agreement. 

On  this  ground  the  demurrer  must  be  overruled. 


544  COOK  AND   OTHERS   V.    WRIGHT.  [CHAP.  I. 

COOK  AND  Others  v.  WRIGHT. 

In  the  Queen's  Bench,  July  9,  1861. 

{^Reported  in  i  Best  &^  Stnith  559.J 

Declaration  by  the  plaintiffs,  as  payees,  against  the  defend- 
ant, as  maker  of  two  promissory  notes,  dated  February  7th, 
1856.  The  first  count  was  upon  a  note  for  ^lo  loj-.,  payable 
twelve  months  after  date  ;  the  second  was  upon  a  note  for  ;;^  11, 
payable  twenty-four  months  after  date.  There  was  also  a  count 
upon  an  account  stated.     Claim  ^50.' 

First  plea,  to  the  whole  declaration  :  That,  after  the  passing 
and  coming  into  operation  of  the  Whitechapel  Improvement 
Act,  1853,  and  after  the  passing  and  coming  into  operation  of 
the  Metropolis  Local  Management  Act,  1855,  the  defendant 
made  the  several  promissory  notes  in  the  said  first  and  second 
counts  mentioned,  at  the  request  of  the  plaintiffs,  and  that,  at 
the  time  of  making  the  said  promissory  notes,  the  plaintiffs 
asserted  and  represented  to  the  defendant,  and  the  defendant 
believed  such  assertion  and  representation  to  be  true,  that  there 
was  then  due  and  owing,  and  payable  from  him,  the  defendant, 
as  the  owner  of  certain  lands  and  buildings  in  certain  streets 
called  Finch  Street,  John  Street,  and  Dowson's  Place,  situate 
within  the  parish  of  St.  Mary,  Whitechapel,  to  the  trustees  of 
the  parish  of  St.  Mary,  Whitechapel,  under  the  provisions  of 
the  Whitechapel  Improvement  Act,  1853,  divers  large  sums  of 
money  in  respect  of  paving  the  streets  fronting,  adjoining,  and 
abutting  on  such  lands  and  buildings.  And  the  defendant  says 
that,  at  the  time  of  making  the  said  promissory  notes  no  sum 
of  money  whatsoever  was  due  or  owing  or  payable  from  the 
defendant  as  such  owner  to  the  said  trustees,  nor  was  the  de- 
fendant such  owner  as  aforesaid,  and  that  there  never  was  any 
consideration  or  value  for  the  defendant  making  the  said  prom- 
issory notes  in  the  first  and  second  counts  mentioned,  or  either 
of  them,  or  for  his  paying  the  same,  or  any  part  thereof  ;  and 
the  plaintiffs  never  were,  nor  was  any  person,  ever  a  holder  of 
the  said  notes,  or  either  of  them,  for  value  or  consideration  ; 
and  that  the  account  stated,  in  the  declaration  mentioned,  was 
stated  of  and  concerning  the  matters  and  things  in  this  plea 
mentioned,  and  not  of  or  concerning  any  other  matter  or  thing 
whatsoever. 

'  The  suit  was  commenced  in  the  Whitechapel  County  Court  of  Middlesex, 
and  was  removed  by  certiorari  into  this  Court. 


SEC.  Il/.J  COOK   AND   OTHERS   V.   WRIGHT.  545 

Second  plea  to  the  first  and  second  counts  :  That  the  defend- 
ant was  induced  to  make,  and  did  make,  the  promissory  notes 
in  those  counts  mentioned,  and  each  of  them,  by  the  fraud, 
covin,  and  misrepresentation  of  the  plaintiffs  and  others  in  col- 
lusion with  them. 

On  the  trial,  before  Wightman,  J.,  at  the  Sittings  in  London, 
during  Easter  Term,  i860,  it  appeared  that  tlie  plaintiffs  were 
four  of  the  commissioners  or  trustees  acting  under  and  incor- 
porated by  §  27  of  the  Whitechapel  Improvement  Act,  1853, 
16  &  17  Vict.  ch.  cxli. ;  and  the  action  was  brought  to  recover 
the  amount  of  the  two  notes  mentioned  in  the  declaration.  The 
evidence  as  to  what  took  place  at  the  time  of  the  giving  of  the 
notes  was  as  follows.  Mitchell,  the  clerk  to  the  trustees,  said 
that  certain  parts  of  the  district  not  being  in  repair  in  1854, 
notices  to  do  repairs  were  sent  or  left  addressed  to  the  owners  ; 
and  in  October,  1855,  he  wrote  a  letter  to  the  defendant  de- 
manding ^70  for  expenses  incurred  by  the  trustees  in  doing 
paving  works  in  front  of  houses,  of  which  the  defendant  was 
the  owner  or  occupier,  situate  in  and  abutting  on  public  high- 
ways within  the  district  of  the  Whitechapel  Improvement  Act.' 
The  defendant  complained  that  the  works  done  by  the  trustees 
had  seriously  injured  the  property,  and  that  the  tenants  were 
dissatisfied,  and  requested  him  to  get  an  abatement  made.  He 
informed  the  defendant  that  the  trustees  assented,  and  the  bal- 
ance to  be  paid  by  the  defendant  was  agreed  to  at  jQt)^  ;  the 
defendant  then  requested  time,  and  time  was  given,  upon  con- 
dition that  he  paid  interest  ;  and  three  promissory  notes  were 

'  Sect.  38  of  Stat.  16  &  17  Vict.  ch.  cxli.:  "  That  in  case  any  present  or 
future  street,  not  being  a  highway  repaired  by  any  Board  of  Commissioners 
or  Trustees,  or  any  part  thereof,  be  not  from  time  to  time  levelled,  paved, 
flagged,  and  channelled  to  the  satisfaction  of  the  said  trustees,  and  in  such 
manner  and  with  such  materials  as  they  may  airect,  they  may,  by  notice  in 
writing  to  the  respective  owners  or  occupiers  of  the  lands  or  buildings 
fronting,  adjoining,  or  abutting  upon  such  parts  thereof  as  may  require  to 
be  levelled,  paved,  flagged,  or  channelled,  require  them  to  level,  pave,  flag, 
or  channel  the  same  within  a  time  to  be  specified  in  such  notice  ;  and  if 
such  notice  be  not  complied  with,  the  said  trustees  may,  if  they  shall  think 
fit,  execute  the  works  mentioned  or  referred  to  ^-herein,  and  the  expenses 
incurred  by  them  in  so  doing  shall  be  paid  by  the  owners  in  default,  accord- 
ing to  the  frontage  of  their  respective  lands  or  buildings,  and  in  such  pro- 
portions as  shall  be  settled  by  the  trustees,  having  regard  to  all  the  circum- 
stances of  the  case  ;  and  such  expenses  may  be  recovered  from  the  last- 
mentioned  owners  as  liquidated  damages,  or  by  action  on  the  case,  in  any 
county  Court  or  superior  court  of  law,  in  the  same  manner  as  rates  herein- 
after mentioned,  and  also  in  like  manner  as  in  and  by  the  Towns  Improve- 
ment Clauses  Act  [1847J,  herewith  incorporated,  is  provided,  with  respect 
to  the  recovery  of  expenses  in  the  clauses  of  the  last  mentioned  act  with 
respect  to  the  execution  of  works  bs'  owners." 


546  COOK   AND   OTHERS   V.   WRIGHT.  [CHAP.  I. 

given  by  the  defendant,  the  first  of  which  was  paid  by  him 
under  protest.  The  defendant  was  called,  and  stated  that  Mrs. 
Bennett  was  owner  of  the  three  houses  in  question,  and  that  he 
was  tenant  of  one  of  them,  at  a  rack  rent  under  her,  and  col- 
lected the  rents  of  the  others  for  her  ;  that  he  paid  the  paving- 
rate  of  the  house  which  he  occupied,  and  the  paving-rates  of 
the  other  houses  he  paid  for  Mrs.  Bennett  and  in  her  name  ; 
that,  upon  receiving  the  notice  of  October,  1855,  he  went  before 
the  Board  of  Trustees  and  told  them  that  he  was  not  the  owner 
of  the  property,  and  showed  them  Mrs.  Bennett's  receipts  for 
the  rent.  They  replied  that,  as  he  paid  the  rates,  they  consid- 
ered he  was  the  owner  within  the  meaning  of  the  Whitechapel 
Improvement  Act,  1853,  and,  if  he  did  not  give  notes,  they 
would  serve  him  as  they  have  served  Goble,  which  was  by  levy- 
ing an  execution  on  him  ;  that  there  was  another  case  in  which 
the  question  of  the  liability  of  the  inhabitants  was  to  be,  tried, 
and,  if  decided  against  the  trustees,  he  should  not  be  called  on 
to  pay.  When  the  first  note  became  due  he  complained  to 
Mitchell  that  the  trustees  had  not  carried  out  their  promise  to 
try  one  of  the  cases.  Mitchell  said  that,  as  the  defendant  had 
signed  the  notes,  he  must  pay  them,  and  that  the  promised  trial 
should  take  place  ;  thereupon  the  defendant  paid  the  first  note. 
The  defendant  was  afterward  told  by  Mrs.  Bennett  that  he  was 
not  the  owner  within  the  meaning  of  the  act,  and  he  thereupon 
went  to  a  Board  meeting  of  the  trustees  and  told  them  that  he 
would  not  pay  the  other  notes.  It  was  contended  for  the  de- 
fendant that  the  notes  were  given  without  consideration,  the 
defendant  not  being  an  "  owner  "  within  §  7  of  the  Whitechapel 
Improvement  Act.  The  jury,  in  answer  to  questions  put  to 
them  by  the  learned  judge,  found  that  the  defendant  told 
Mitchell  or  the  Board,  before  he  gave  the  notes,  that  he  was 
not  the  owner  ;  that  the  defendant  mentioned,  before  he  gave 
the  notes,  that  Mrs.  Bennett  was  the  owner  ;  and  that  Mitchell, 
or  some  member  of  the  Board,  told  the  defendant,  in  the 
Board-room,  that  unless  he  gave  the  notes  he  would  be  served 
as  Goble  had  been.  The  verdict  was  thereupon  entered  for  the 
defendant,  leave  being  reserved  to  move  to  enter  a  verdict  for 
the  plaintiffs.     In  the  same  term  (May  4). 

Montagu  Chambers  obtained  a  rule  to  show  cause  accordingly, 
on  the  ground  that  the  evidence  did  not  prove  want  of  consid- 
eration for  giving  the  notes,  and  that,  upon  the  evidence  the 
plaintiffs  were  entitled  to  a  verdict. 

This  rule  was  argued  in  this  term,  May  23d,  before  Cockburn, 
C.J.,  Wightman,  Crompton,  and  Blackburn,  JJ. 

Shee  and  Barnard  showed  cause. 


SEC.  II/.]  COOK   AND    OTHERS   V.    WRIGHT.  547 

Hatinen  in  support  of  the  rule. 

Blackburn,  J.,  delivered  the  judgment  of  Cockburn,  C.J., 
Wightman,  J.,  and  himself  ;  Crompton,  J.,  liaving  left  the  Court 
before  the  argument  was  concluded. 

In  this  case  it  appeared  on  the  trial  that  the  defendant  was 
agent  for  a  Mrs.  Bennett,  who  was  non-resident  owner  of  houses 
in  a  district  subject  to  a  local  act.  Works  had  been  done  in 
the  adjoining  street  by  the  commissioners  for  executing  the  act, 
the  expenses  of  which,  under  the  provisions  of  their  act,  they 
charged  on  the  owners  of  the  adjoining  houses.  Notice  had 
been  given  to  the  defendant,  as  if  he  had  himself  been  owner 
of  the  houses,  calling  on  him  to  pay  the  proportion  chargeable 
in  respect  of  them.  He  attended  at  a  Board  meeting  of  the 
commissioners,  and  objected  both  to  the  amount  and  nature  of 
the  charge,  and  also  stated  that  he  was  not  the  owner  of  the 
houses,  and  that  Mrs.  Bennett  was.  He  was  told  that  if  he  did 
not  pay  he  would  be  treated  as  one  Goble  had  been.  It  ap- 
peared that  Goble  had  refused  to  pay  a  sum  charged  against 
him  as  owner  of  some  houses,  and  the  commissioners  had  taken 
legal  proceedings  against  him,  and  he  had  then  submitted  and 
paid  with  costs.  In  the  result  it  was  agreed  between  the  com- 
missioners and  the  defendant  that  the  amount  charged  upon 
him  should  be  reduced,  and  that  time  should  be  given  to  pay  it 
in  three  instalments  ;  he  gave  three  promissory  notes  for  the 
three  instalments  ;  the  first  was  duly  honored,  the  others  were 
not,  and  were  the  subject  of  the  present  action.  At  the  trial  it 
appeared  that  the  defendant  was  not  in  fact  owner  of  the 
houses.  As  agent  for  the  owner  he  was  not  personally  liable 
under  the  act.  In  point  of  law,  therefore,  the  commissioners 
were  not  entitled  to  claim  the  money  from  him  ;  but  no  case  of 
deceit  was  alleged  against  them.  It  must  be  taken  that  the 
commissioners  honestly  believed  that  the  defendant  was  per- 
sonally liable,  and  really  intended  to  take  legal  proceedings 
against  him,  as  they  had  done  against  Goble.  The  defendant, 
according  to  his  own  evidence,  never  believed  that  he  was  liable 
in  law,  but  signed  the  notes  in  order  to  avoid  being  sued  as 
Goble  was.  Under  these  circumstances  the  substantial  question 
reserved  (irrespective  of  the  form  of  the  plea)  was  whether  there 
was  any  consideration  for  the  notes.  We  are  of  opinion  that 
there  was. 

There  is  no  doubt  that  a  bill  or  note  given  in  consideration, 
of  what  is  supposed  to  be  a  debt  is  without  consideration  if  it 
appears  that  there  was  a  mistake  in  fact  as  to  the  existence  of 
the  debt:  Bell  v.  Gardiner,  4  M.  &  Gr.  11  (E.  C.  L.  R.  Vol. 
XLIII.)  ;  and,  according  to  the  cases  of  Southall  v.  Rigg  and 


548   .  COOK   AND    OTHERS   V.    WRIGHT.  [CHAP.  I. 

Forman  r.  Wright,  ii  C.  B.  481  (E.  C.  L.  R.  Vol.  LXXIII.), 
the  law  is  the  same  if  the  bill  or  note  is  given  in  consequence 
of  a  mistake  of  law  as  to  the  existence  of  the  debt.  But  here 
there  was  no  mistake  on  the  part  of  the  defendant  either  of  law 
or  fact.  What  he  did  was  not  merely  the  making  an  erroneous 
account  stated,  or  promising  to  pay  a  debt  for  which  he  mis- 
takingly  believed  himself  liable.  It  appeared  on  the  evidence 
that  he  believed  himself  not  to  be  liable,  but  he  knew  that  the 
plaintiffs  thought  him  liable,  and  would  sue  him  if  he  did  not 
pay,  and  in  order  to  avoid  the  expense  and  trouble  of  legal  pro- 
ceedings against  himself  he  agreed  to  a  compromise  ;  and  the 
question  is,  whether  a  person  who  has  given  a  note  as  a  com- 
promise of  a  claim  honestly  made  on  him,  and  which  but  for 
that  compromise  would  have  been  at  once  brought  to  a  legal 
decision,  can  resist  the  payment  of  the  note  on  the  ground  that 
the  original  claim  thus  compromised  might  have  been  success- 
fully resisted. 

If  the  suit  had  been  actually  commenced,  the  point  would 
have  been  concluded  by  authority.  In  Longridge  v.  Dorville, 
5  B.  &  Aid.  117  (E.  C.  L.  R.,  Vol.  VII.),  it  was  held  that  the 
compromise  of  a  suit  instituted  to  try  a  doubtful  question  of 
law  was  a  sufficient  consideration  for  a  promise.  In  Atlee  v. 
Backhouse,  3  M.  &  W.  633,  where  the  plaintiff's  goods  had  been 
seized  by  the  excise,  and  he  had  afterward  entered  into  an 
agreement  with  the  Commissioners  of  Excise  that  all  proceed- 
ings should  be  terminated,  the  goods  delivered  up  to  the  plain- 
tiff, and  a  sum  of  money  paid  by  him  to  the  commissioners, 
Parke,  B.,  rests  his  judgment,  page  650,  on  the  ground  that  this 
agreement  of  compromise  honestly  made  was  for  consideration 
and  binding.  In  Cooper  z;.  Parker,  15  Com.  B.  822  (E.  C.  L.  R., 
Vol.  LXXX.),  the  Court  of  Exchequer  Chamber  held  that  the 
withdrawal  of  an  untrue  defence  of  infancy  in  a  suit,  with  pay- 
ment of  costs,  was  a  sufficient  consideration  for  a  promise  to 
accept  a  smaller  sum  in  satisfaction  of  a  larger. 

In  these  cases,  however,  litigation  had  been  actually  com- 
menced ;  and  it  was  argued  before  us  that  this  made  a  differ- 
ence in  point  of  law,  and  that  though,  where  a  plaintiff  has 
actually  issued  a  writ  against  a  defendant,  a  compromise  hon- 
estly made  is  binding,  yet  the  same  compromise,  if  made  before 
the  writ  actually  issues,  though  the  litigation  is  impending  is 
void.  Edwards  v.  Baugh,  11  M.  &  W.  641,  was  relied  upon  as 
an  authority  for  this  proposition.  But  in  that  case  Lord 
Abinger  expressly  bases  his  judgment  (pages  645,  646)  on  the 
assumption  that  the  declaration  did  not,  either  expressly  or  im- 
pliedly, show  that  a  reasonable  doubt  existed  between  the  par- 


SEC.  II/.]  COOK   AND    OTHERS   V.    WRIGHT.  549 

ties.  It  may  be  doubtful  whether  the  declaration  in  that  case 
ought  not  to  have  been  construed  as  disclosing  a  compromise 
of  a  real  botid  fide  claim,  but  it  does  not  appear  to  have  been  so 
construed  by  the  Court.  We  agree  that  unless  there  was  a 
reasonable  claim  on  the  one  side,  which  it  was  bond  fide  intended 
to  pursue,  there  would  be  no  ground  for  a  compromise  ;  but  we 
cannot  agree  that  (except  as  a  test  of  the  reality  of  the  claim  in 
fact)  the  issuing  of  a  writ  is  essential  to  the  validity  of  the  com- 
promise. The  position  of  the  parties  must  necessarily  be  altered 
in  every  case  of  compromise,  so  that,  if  the  question  is  after- 
ward opened  up,  they  cannot  be  replaced  as  they  were  before 
the  compromise.  The  plaintiff  may  be  in  a  less  favorable  posi- 
tion for  renewing  his  litigation,  he  must  be  at  an  additional 
trouble  and  expense  in  again  getting  up  his  case,  and  he  may 
no  longer  be  able  to  produce  the  evidence  which  would  have 
proved  it  originally.  Besides,  though  he  may  not  in  point  of 
law  be  bound  to  refrain  from  enforcing  his  rights  against  third 
persons  during  the  continuance  of  the  compromise,  to  which 
they  are  not  parties,  yet  practically  the  effect  of  the  compromise 
must  be  to  prevent  his  doing  so.  For  instance,  in  the  present 
case,  there  can  be  no  doubt  that  the  practical  effect  of  the  com- 
promise must  have  been  to  induce  the  commissioners  to  refrain 
from  taking  proceedings  against  Mrs.  Bennett,  the  real  owner 
of  the  houses,  while  the  notes  given  by  the  defendant,  her 
agent,  were  running  ;  though  the  compromise  might  have 
afforded  no  ground  of  defence  had  such  proceedings  been  re- 
sorted to.  It  is  this  detriment  to  the  party  consenting  to  a 
compromise  arising  from  the  necessary  alteration  in  his  position 
which,  in  our  opinion,  forms  the  real  consideration  for  the 
promise,  and  not  the  technical  and  almost  illusory  consideration 
arising  from  the  extra  costs  of  litigation.  The  real  considera- 
tion therefore  depends,  not  on  the  actual  commencement  of  a 
suit,  but  on  the  reality  of  the  claim  made  and  the  bond  fides  of 
the  compromise. 

In  the  present  case  we  think  that  there  was  sufficient  consid- 
eration for  the  notes  in  the  compromise  made  as  it  was. 

The  rule  to  enter  a  verdict  for  the  plaintiff  must  be  made 
absolute. 

Rule  absolute. 


550  '  CALLISHER   V.   BISCHOFFSHEIM.  [CHAP.  I. 

CALLISHER  v.  BISCHOFFSHEIM. 

In  the  Queen's  Bench,  June  6,   1870. 

{Reported  in  Law  Reports,  5  Queen's  Bench  449.] 

Declaration,  that  the  plaintiff  had  alleged  that  certain 
moneys  were  due  and  owing  to  him,  to  wit,  from  the  Govern- 
ment of  Honduras,  and  from  Don  Carlos  Gattierez,  and  others, 
and  had  threatened  and  was  about  to  take  legal  proceedings 
against  the  said  government  and  persons  to  enforce  payment  of 
the  same  ;  and  thereupon,  in  consideration  that  the  plaintiff 
would  forbear  from  taking  such  proceedings  for  an  agreed  time, 
the  defendant  promised  to  deliver  to  the  plaintiff  certain  securi- 
ties, to  wit,  bonds  or  debentures,  called  Honduras  Railway  Loan 
Bonds,  for  sums  to  the  amount  of  ^600,  immediately  the  bonds 
should  be  printed.  Averment,  that  the  plaintiff  did  not  take 
any  proceedings  during  the  agreed  period  or  at  all  ;  and  that 
all  conditions  had  been  fulfilled  necessary  to  entitle  him  to  sue 
in  respect  of  the  matters  before  stated.  Breach,  that  the  de- 
fendant had  not  delivered  to  the  plaintiff  the  bonds,  or  any  of 
them. 

Plea,  that  at  the  time  of  making  the  alleged  agreement  no 
moneys  were  due  and  owing  to  the  plaintiff  from  the  govern- 
ment and  other  persons. 
Demurrer  and  joinder. 

Jajties,  Q.C.  {Rose  with  him)  in  support  of  the  demurrer. 
Pollock^  Q.C.  {Joyce  with  him),  contra. 

Cockburn,    C.J.     Our  judgment   must  be   for  the    plaintiff. 

No  doubt  it  must  be  taken  that  there  was,  in  fact,  no  claim  by 

the  plaintiff  against  the  Honduras   Government  which  could  be 

prosecuted  by  legal  proceedings  to  a  successful  issue  ;  but  this 

does  not  vitiate  the  contract  and  destroy  the  validity  of  what  is 

alleged  as  the  consideration.     The  authorities  clearly  establish 

(that  if  an  agreement  is  made  to  compromise  a  disputed  claim, 

(forbearance  to  sue  in  respect  of  that  claim  is  a  good  considera- 

jtion  ;  and  whether  proceedings  to  enforce  the  disputed  claim 

(have  or  have  not  been  instituted  makes  no  difference.     If  the 

'defendant's  contention  were  adopted,  it  would  result  that  in  no 

case  of  a  doubtful    claim    could    a   compromise   be    enforced. 

Every  day  a  compromise   is  effected   on  the  ground  that   the 

party  making  it  has  a  chance  of  succeeding  in  it,  and  if  he  bond 

fide  believes  he  has  a  fair  chance  of  success,  he  has  a  reasonable 

ground  for  suing,  and  his  forbearance  to  sue  will  constitute  a 


SEC.  II/.]  CALLISHER   r.    BISCIIOKFSIIEIM.  55 1 

good  consideration.  When  such  a  person  forbears  to  sue  he 
gives  up  what  he  believes  to  be  a  right  of  action,  and  the  other 
party  gets  an  advantage,  and,  instead  of  being  annoyed  with 
an  action,  he  escapes  from  the  vexations  incident  to  it.  The 
defendant's  contention  is  unsupported  by  authority. 

It  would  be  another  matter  if  a  person  made  a  claim  which 
he  knew  to  be  unfounded,  and,  by  a  compromise,  derived  an 
advantage  under  it  ;  in  that  case  his  conduct  would  be  fraudu- 
lent. If  the  plea  had  alleged  that  the  plaintiff  knew  he  had  no 
real  claim  against  the  Honduras  Government,  that  would  have 
been  an  answer  to  the  action. 

Blackburn,  J.  I  am  of  the  same  opinion.  The  declaration, 
as  it  stands,  in  effect  states  that  the  plaintiff,  having  alleged 
that  certain  moneys  were  due  to  him  from  the  Honduras  Gov- 
ernment, was  about  to  enforce  payment,  and  the  defendant  sug- 
gested that  the  plaintiff's  claim,  whether  good  or  bad,  should 
stand  over.  So  far  the  agreement  was  a  reasonable  one.  The 
plea,  however,  alleges  that  at  the  time  of  making  the  agreement 
no  money  was  due.  If  we  are  to  infer  that  the  plaintiff  believed 
that  some  money  was  due  to  him,  his  claim  was  honest,  and  the 
compromise  of  that  claim  would  be  binding,  and  would  form  a 
good  consideration,  although  the  plaintiff,  if  Ihe  had  prosecuted 
his  original  claim,  would  have  been  defeated.  This  case  is  de- 
cided by  Cook  V.  Wright.'  In  that  case  it  appeared  from  the 
evidence  that  the  defendant  knew  that  the  original  claim  of  the 
plaintiff  was  invalid,  yet  he  was  held  liable,  as  the  plaintiff 
believed  his  claim  to  be  good.  The  Court  say"  that  "  the  real 
consideration  depends  on  the  reality  of  the  claim  made,  and  the 
bond  fides  of  the  compromise."  If  the  plaintiff's  claim  against 
the  Honduras  Government  was  not  bond  fide ^  this  ought  to  have 
been  alleged  in  the  plea  ;  but  no  such  allegation  appears. 

Mellor,  J.  I  am  of  the  same  opinion.  If  the  plaintiff's 
claim  against  the  Honduras  Government  was  fraudulent,  the 
defendant  ought  to  have  alleged  it. 

Lush,  J.,  concurred. 

Judgment  for  the  plaintiff. 

Brandon  for  plaintiff. 

Baxter,  Rose,  Norton  6^  Co.  for  defendant. 

»  1  B.  &  S.  559.  570  ;  30  L.  J.  (Q.  B.)  321,  324. 
'  I  B.  &  S.  at  p.  570  ;  30  L,  J.  (Q.  B.)  at  p.  324. 


552  MANTER   V.    CHURCHILL.  [CHAP.  I. 


TIMOTHY   MANTER  v.  WINSLOW   W.  CHURCHILL. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
June  24,  1879. 

\_Reporied  in  127  Massachusetts  Reports  31. J 

Contract  vipon  an  account  annexed  for  money  paid.  An- 
swer, a  general  denial.  Trial  in  the  Superior  Court,  without  a 
jury,  before  Brigham,  C.J.,  who  allowed  a  bill  of  exceptions  in 
substance  as  follows  : 

Ephraim  Churchill,  the  father  of  the  defendant,  died  in  the 
fall  of  1865,  then  owner  of  one-quarter  part  of  a  schooner  and 
left  a  widow,  Martha  H.  Churchill,  and  four  children.  In 
November,  1865,  Martha  H.  was  appointed  administratrix  of 
the  estate  of  Ephraim.  The  plaintiff  became  part  owner  and 
managing  agent  of  the  schooner  in  1869,  and  transacted  all  the 
business  which  related  to  the  interest  of  the  estate  of  Ephraim 
in  the  schooner  with  Martha  H.  in  her  character  of  administra- 
trix. In  this  character  she  joined  in  a  bill  of  sale  of  the  schooner 
in  March,  1876,  and  prior  thereto  received  from  the  plaintiff  one 
quarter  of  the  profits  of  the  schooner's  business.  The  personal 
estate  of  Ephraim  remaining  in  the  hands  of  the  administratrix, 
after  the  payment  of  debts,  was  never  distributed  among  the 
heirs  at  law  of  Ephraim,  and  they  have  hitherto  allowed  the 
administratrix  to  use  it  for  her  maintenance,  and  treat  it  as  her 
own  property.  The  business  of  the  schooner  was  conducted,  in 
the  year  prior  to  her  sale,  with  such  loss  that  on  June  ist,  1876, 
when  the  final  accounts  were  made  up  by  the  plaintiff,  the  sum 
of  $110  was  due  to  the  plaintiff  from  the  estate  of  Ephraim, 
being  one  quarter  of  the  loss  for  the  previous  year's  business, 
and  the  further  sum  of  $3.29  was  due  to  the  plaintiff  from  the 
estate,  being  one  quarter  of  the  loss  for  the  year  prior  to  1875. 
These  sums,  am.ounting  to  $113.29,  the  plaintiff  sought  to  re- 
cover in  this  action,  less  the  sum  of  $62.50,  paid  since  this  action, 
as  hereinafter  stated,  on  the  ground  of  a  special  oral  promise  of 
the  defendant  to  pay  the  same,  in  consideration  of  the  plaintiff's 
forbearing,  for  the  period  of  about  three  months,  to  bring  an 
action  against  the  administratrix,  the  defendant  or  other  heirs 
at  law  of  Ephraim  to  recover  the  same.  The  plaintiff  also 
claimed  to  recover  upon  an  implied  promise  of  the  defendant 
to  pay  the  sum  sought  to  be  recovered  in  this  action,  in  consid- 
eration of  the  plaintiff's  forbearing,  for  a  considerable  period 


SEC.  II/.]  MANTER   V.    CHURCHILL.  553 

of  time,  to  bring  an  action  against  either  the  administratrix, 
the  defendant,  or  the  other  heirs  at  law  of  Ephraim. 

The  judge  found  that  the  defendant  made  an  oral  promise  to 
pay  the  account  declared  on  to  the  plaintiff's  attorney,  and  also 
,  to  the  plaintiff  ;  that  this  promise  induced  the  plaintiff  to  for- 
bear, and  he  did  forbear,  bringing  this  action,  for  the  period  of 
three  months,  against  the  administratrix,  the  defendant  or  the 
other  heirs  at  law  of  Ephraim  ;  that  the  defendant  solicited  the 
plaintiff  to  forbear  bringing  an  action  against  the  administratrix, 
assuring  the  plaintiff  that  she  had  a  disposition  to  pay,  and 
would,  from  sources  which  were  specified  by  the  defendant,  have 
the  means  of  paying  the  account,  and,  by  his  declarations  and 
conduct,  intentionally  caused  the  plaintiff  to  believe  that  the  ac- 
count would  be  paid  by  the  administratrix,  and,  if  not  paid  by 
her,  would  be  paid  by  the  defendant,  or  by  the  heirs  at  law, 
within  one  year,  and  thus  induced  the  plaintiff  to  forbear  ;  and 
that  he  did  forbear  bringing  this  action  against  the  administra- 
trix for  the  period  of  at  least  one  year. 

After  this  action  was  brought,  the  defendant's  sisters  paid 
the  plaintiff  $62.50,  on  account  of  the  sum  sought  to  be  recov- 
ered in  this  action,  and,  before  such  payment,  the  defendant 
and  the  other  heirs  proposed  to  convey  to  the  plaintiff  land 
which  had  been  a  part  of  the  estate  of  Ephraim,  in  payment  of 
the  account  declared  on,  and  a  deed  was  made  to  carry  into 
effect  this  proposition,  but  was  not  executed,  by  reason  of  the 
disagreement  of  the  parties  as  to  the  price  at  which  the  land 
should  be  received  by  the  plaintiff,  in  settlement  of  his  account. 
The  defendant  also  relied  upon  the  Statute  of  Frauds.  The 
plaintiff  contended  that  this  defence  was  not  open  under  the 
pleadings  ;  and  the  judge  did  not  base  his  finding  upon  that 
defence. 

Upon  these  facts  the  judge  ruled  that  the  action  could  not  be 
maintained,  and  ordered  judgment  for  the  defendant,  and  the 
plaintiff  alleged  exceptions. 

C.  G.  Davis  ^  A.  Lord  for  the  plaintiff. 

D.  E.  Dattion  for  the  defendant. 

Lord,  J.  It  is  entirely  clear  that  there  was  no  evidence  tend- 
ing to  hold  the  defendant  as  an  original  promisor.  The  only 
question  is  whether  he  was  liable  to  pay  the  debt  of  his  mother, 
Martha  H.  Churchill,  His  liability  for  that  debt  is  not  denied 
upon  the  ground  that  he  did  not  promise  in  writing  to  pay  it. 
The  Statute  of  Frauds  is  not  pleaded,  the  plaintiff  contends  that 
that  defence  is  not  open,  because  not  pleaded,  and  the  chief 
Justice  of  the  Superior  Court  states  expressly  that  his  finding 
for  the  defendant  was  not  based  upon  the  Statute  of  Frauds.    He 


554  CLINE   &   CO.   V.   TEMPLETON.  [CHAP.  I. 

finds  that  the  defendant  promised  to  pay  the  debt  ;  and  the 
question  presented  for  our  consideration  is,  whether  such  prom- 
ise was  founded  upon  a  sufficient  consideration,  or  whether  it 
was  mere  nudum  pactum. 

Mere  forbearance  to  sue  is  not  a  sufficient  consideration  for  a 
promise  to  pay  the  debt  of  another.  Mecorney  v.  Stanley, 
8  Cush.  85.  An  agreement  to  forbear  and  actual  forbearance 
under  such  agreement  is  a  sufficient  consideration.  Robin- 
son V.  Gould,  II  Cush.  55. 

In  this  case,  the  presiding  judge,  although  he  finds  there  was 
forbearance  to  sue,  and  finds  that  the  plaintiff  was  induced  to 
forbear  because  of  the  request  of  the  defendant,  yet  does  not 
find  that  there  was  upon  the  part  of  the  plaintiff  any  agreement 
to  forbear.  The  plaintiff,  therefore,  was  under  no  obligation, 
legal  or  moral,  not  to  bring  a  suit  ;  and  he  might  at  any 
moment  have  commenced  an  action  against  the  mother  of  the 
defendant,  without  any  cause  for  complaint  on  the  part  of  the 
defendant  that  he  had  violated  any  promise  or  engagement  to 
him  ;  and  although  the  forbearance  was  at  the  request  of  the 
defendant,  and  at  his  solicitation,  sti,ll  it  is  not  found  to  have 
been  by  virtue  of  an  agreement.  There  are  cases  in  which  the 
fact  of  forbearance,  and  the  circumstances  under  which  it  exists, 
may  be  properly  left  to  the  jury  as  evidence  tending  to  show  a 
promise  to  forbear.  Boyd  v.  Freize,  5  Gray,  553.  But  in  this 
case,  decided  by  the  Court  without  the  intervention  of  a  jury, 
it  is  to  be  presumed  that  the  evidence  did  not  satisfy  the  Court 
of  an  agreement  to  forbear,  and  the  Court  therefore  found  the 
promise  to  be  without  consideration,  and  that  no  action  could 
be  maintained  upon  it. 

Exceptions  overruled. 


CLINE  &  CO.  V.  TEMPLETON. 

In  the  Court  of  Appeals  of   Kentucky,  September  22,  1880. 

{^Reported  iti  78  Kentucky  Reports  550.] 

Rodman  &>  Brown  and  John  A.  Middleton  for  appellants. 
Byron  Bacoft  for  appellee. 
Hines  delivered  the  opinion  of  the  Court. 

The  admitted  facts  in  the  pleadings  in  this  case  are  :  The 
sole  consideration  of  the  note'  sued  on  was  the  agreement  to 

'  See  supra,  p.  i,  note  i. 


SEC.  II/.]  CLINE   &   CO.   V.   TEMPLETON.  555 

forbear  the  prosecution  of  a  suit  by  Susan  Cline  against  appellee  ; 
that  the  suit  was  brought  by  Susan  Cline  against  appellee 
for  seduction,  and  that  at  the  time  she  was  an  adult  unmarried 
woman  ;  that  at  the  time  of  the  alleged  assignment  of  the  note 
by  Susan  Cline  to  appellants,  they  had  full  knowledge  of  all 
these  facts.  It  is  further  shown  in  evidence  that  the  note  before 
maturity  was  discounted  to  the  German  Security  Bank,  and, 
having  been  protested  for  non-payment,  it  was  taken  up  by 
appellants. 

The  questions  in  the  case  are  :  First,  was  the  note  unenforce- 
able for  want  of  consideration  ?  Second,  are  the  rights  of  the 
parties  altered  by  the  fact  that  the  note  was  put  on  the  footing 
of  a  foreign  bill  of  exchange  by  discounting  it  to  the  bank  ? 

That  there  is  no  cause  of  action,  either  at  common  law  or 
under  the  statutes,  in  behalf  of  a  woman  for  seduction,  is  clearly 
established.  (Woodward  v.  Anderson,  9  Bush,  624.)  It  is  laid 
down,  both  in  Parsons  on  Contracts  and  in  Chitty  on  Contracts, 
that  an  agreement  to  forbear  to  prosecute  a  claim  which  is 
wholly  and  certainly  unsustainable  at  law  or  in  equity,  is  no 
consideration  for  a  promise.  (Parsons,  Vol.  I.,  p.  44  ;  Chitty, 
Vol.  I.,  pp.  35-46.)  This  proposition  appears  to  be  so  well 
established  that  further  citation  of  authorities  seems  to  us  un-^ 
necessary.  We  need  not  discuss  the  question  as  to  whether' 
past  cohabitation  is  a  good  consideration  for  a  promise,  since  it 
is  admitted  that  the  sole  consideration  was  the  agreement  to 
forbear  suit. 

The  effect  of  the  statute  in  regard  to  the  discounting  of  notes 
in  bank,  so  as  to  place  them  on  the  footing  of  bills  of  exchange, 
is  to  fix  the  rights  and  liabilities  of  the  parties  as  they  would 
be  if  the  paper  had  originally  been  a  foreign  bill  of  exchange. 

In  this  case  appellants,  having  received  the  note  sued  on  with 
the  knowledge  that  it  was  without  consideration,  took  it  up 
from  the  bank  with  the  same  right  in  appellee  to  make  defence 
as  he  had  prior  to  the  discounting.  Appellants  being  holders 
with  notice  of  the  infirmity  in  the  bill,  it  is  in  their  hands  sub- 
ject to  all  the  defences  that  existed  between  the  original  parties 
to  the  paper. 

Judgment  affirmed. 


t;56  GUNNING   V.    ROYAL.  [CHAP.  I. 

J.  H.  GUNNING  V.  J.  P.  ROYAL. 

In  the  Supreme  Court  of  Mississippi,  October  Term,   1881. 

^Reported  in  59  Mississippi  Reports  45.] 

Appeal  from  the  Circuit  Court  of  Warren  County. 

Young,  J. 

For  the  purpose  of  carrying  dirt  from  a  hill  which  he  was 
cutting  down,  the  appellant  hired  a  mare  and  cart  from  the 
appellee,  who  furnished  an  inexperienced  negro  boy  for  driver. 
While  a  fall  was  being  made  at  one  end  of  the  work,  the  rule 
was  for  the  cart  to  be  loaded  at  the  other.  On  one  occasion 
the  boy,  although  warned  by  a  laborer  of  the  appellant,  drove 
to  the  wrong  end  where  there  was  no  dirt,  but  where  the  bank 
was  ready  to  be  caved,  and  while  he  was  attempting  to  comply 
with  another  laborer's  direction  to  turn  the  mare  away,  some 
earth  accidentally  fell,  injuring  the  animal  so  that  she  was  after- 
ward killed.  The  appellee  demanded  $150  for  his  loss.  The 
appellant  denied  liability,  but  after  a  long  dispute  and  an  in- 
effectual attempt  at  arbitration,  gave  his  note  for  $66  in  settle- 
ment of  the  controversy.  When  sued  he  pleaded  want  of  con- 
sideration, and  a  jury  being  waived,  the  Court  gave  judgment 
for  the  plaintiff. 

Cowan  &"  McCabe  for  the  appellant. 

W.  R.  Spears  for  the  appellee. 

Campbell,  J.,  delivered  the  opinion  of  the  Court. 

The  facts  disclosed  by  the  evidence  acquit  Gunning  of  all 
blame  with  respect  to  the  injury  to  the  mare  and  cart  he  had 
hired  of  Royal.  He  was,  therefore,  not  legally  answerable  to 
Royal  for  the  loss  he  suffered,  or  any  part  of  it,  and  the  giving 
of  his  note  in  settlement  of  the  controversy  did  not  preclude 
him  from  showing  that  he  was  not  legally  liable  for  the  pay- 
ment of  the  sum  promised.  The  existence  of  a  dispute  or  con- 
troversy between  parties  is  not  a  sufficient  consideration  to  sup- 
port a  promise  to  pay  money  in  settlement  of  it,  where  no  valid 
demand  for  anything  whatever  exists  in  favor  of  the  promisee. 
There  must  be  a  valid  demand  to  some  extent,  or  for  some- 
thing, to  uphold  a  promise  of  this  kind.  Giving  a  note  to 
settle  a  dispute  or  controversy  does  not  impose  any  liability  on 
the  maker,  if  he  gains  nothing  and  the  payee  loses  nothing  by 
it.      In   such   case  it  devolves  on  the  maker  of  the  note,  when 


SEC.  ll/.]  BELLOWS   V.    SOWLES.  557 

sued,  to  show  the  entire  want  of  any  consideration  for  liis  prom- 
ise, and  Gunning  did  so  in  this  case.      Foster  ?■.  Metts,  55  Miss. 
77,  and  cases  there  cited  ;  Boone  v.  Boone,  58  Miss.  820. 
Reversed  and  remanded. 


O.   F.   BELLOWS  v.   E.   A.   SOWLES. 

In  the  Supreme  Court  of  Vermont,  January  Term,  1883. 

[Reported  tn  55   Vertiio?ti  Reports  391. J 

Assumpsit  with  two  special  counts  and  common  counts. 
Pleas,  the  general  issue,  special  pleas  in  bar,  and  notice  of 
special  matters  in  defence.  Trial  by  jury,  September  Term, 
1880,  Royce,  J.,  presiding.  Verdict  for  the  plaintiff.  The 
declaration  alleged  in  substance  : 

That  the  plaintiff  was  a  relative  and  heir-at-law  of  Hiram 
Bellows  ;  that  by  the  terms  of  the  last  will  of  said  Bellows  no 
allowance  was  made  for  the  plaintiff  ;  that  the  plaintiff  claimed 
and  insisted  that  he  was  left  out  of  said  will,  and  that  no  pro- 
vision or  allowance  out  of  the  estate  was  made  for  him  through 
undue  influence  used  upon  said  Bellows  by  said  defendant  and 
his  wife,  and  that  said  will  was  void  ;  that  "  whereas,  the  said 
defendant,  being  then  and  there  the  executor  named  in  said 
will,  and  being  largely  interested  personally  in  said  estate,  and 
as  legatee  and  the  husband  of  the  principal  legatee  under  that 
will,  and  well  knowing  the  claims  of  the  plaintiff,  and  that  he 
had  employed  counsel  as  aforesaid,  and  that  other  heirs  were 
then  and  there  making  similar  claims,  and  being  anxious  to 
have  said  will  sustained,  had  also  employed  counsel  for  that 
purpose,  and  it  was  then  and  there  expected  by  the  parties  that 
a  contest  would  be  had  upon  the  approval  of  said  will,  which 
would  involve  the  expenditure  of  a  large  amount  of  money  and 
hinder  and  delay  the  settlement  of  said  Hiram  Bellows'  estate 
and  the  receipt  by  the  said  defendant  and  his  said  wife  of  their 
said  legacies,  and  other  sums  of  money  which  the  defendant 
would  otherwise  receive. 

"  And  the  plaintiff  avers  that  on,  to  wit,  December  6th,  1876, 
A.D.,  to  wit,  at  St.  Albans,  aforesaid,  the  plaintiff  met  the  de- 
fendant, by  appointment,  at  his,  defendant's,  house,  and  then 
and  there  the  matters  and  things  above  set  forth  were  fully 
talked  over  and  discussed,  and  then  and  there,  in  consideration 
of  the  premises,  and   that  the  said   plaintiff,  at  the  special  in- 


558  BELLOWS   V.    SOWLES.  [CHAP.  I. 

Stance  and  request  of  the  said  defendant,  would  see  one  Char- 
lotte Law,  who  was  an  heir  of  said  Hiram  Bellows,  and  was 
then  and  there  intending  to  contest  the  validity  of  said  will,  and 
would  use  his  influence  to  have  her  allow  said  will  to  be  ap- 
proved, and  that  the  plaintiff  would  forbear  to  contest  the 
approval  of  said  will  of  the  said  Hiram  Bellows  and  allow  the 
same  to  be  approved  by  the  Probate  Court,  aforesaid,  and 
would  not  appeal  from  the  decision  of  said  Court,  he,  the  said 
defendant,  undertook  and  then  and  there  faithfully  promised 
to  pay  the  plaintiff  the  sum  of  $5000,  whenever,  after  twenty 
days  had  elapsed  from  the  date  of  the  approval  of  said  will  by 
said  Probate  Court,  he  should  be  thereunto  requested,  to  wit, 
at  St,  Albans,  aforesaid.  And  the  said  plaintiff  avers  that,  con- 
fiding in  the  promise  and  undertaking  of  the  said  defendant,  so 
made,  as  aforesaid,  afterward,  to  wit,  on  the  day  and  year  afore- 
said, he  did  see  Charlotte  Law,  and  did  use  his  influence  with 
her  to  allow  said  will  to  be  approved,  and  did  forbear  to  contest 
the  approval  of  said  will  of  the  said  Hiram  Bellows,  and  did 
allow  the  same  to  be  approved  by  said  Probate  Court,  and  did 
not  appeal  from  said  approval." 

On  trial  it  appeared  that  said  Bellows  died  testate,  on  Octo- 
ber i8th,  1876  ;  that  his  will  was  presented  to  the  Probate  Court 
on  November  13th,  1876,  was  probated  on  December  7th,  fol- 
lowing, and  no  appeal  taken  from  its  allowance  ;  that  the  plain- 
tiff was  a  nephew  and  heir  of  said  Bellows,  and  not  a  legatee  ; 
that  the  defendant  was  not  an  heir,  but  executor,  and  his  wife 
and  daughter  were  both  legatees  ;  and  that  the  estate  was  worth 
between  $250,000  and  $300,000.  There  was  no  evidence  in  the 
case  tending  to  show  any  want  of  capacity  on  the  part  of  said 
Bellows  to  make  a  will,  or  to  show  that  any  ground  of  action 
existed  for  contesting  the  validity  of  the  will,  or  that  any  doubt 
existed  as  to  its  validity,  and  no  cause  was  shown  why  it  should 
not  have  been  admitted  to  probate,  except  the  evidence  of  the 
plaintiff. 

The  plaintiff's  evidence  tended  to  show  that  shortly  after  the 
death  of  Mr.  Bellows  he  learned  what  the  provisions  of  the  will 
were,  that  he  determined  to  contest  its  probate  ;  employed 
counsel  who  looked  up  the  law  and  evidence  of  the  case  and 
advised  plaintiff  to  contest  it  ;  that  he  gave  the  Probate  Court 
notice  of  his  intention  to  contest  the  will  ;  and  that  on  Decem- 
ber 6th,  the  day  before  the  day  set  for  the  probate  of  the  will, 
he  came  to  St.  Albans  with  counsel,  for  the  purpose  of  contest- 
ing the  will,  and  that  on  the  evening  of  that  day,  upon  the  invi- 
tation of  the  defendant,  he,  in  company  with  his  brother  James, 
went  to  defendant's  house  to  talk  over  the  matter  ;  that  they 


SEC.  ll/.]  BELLOWS   V.    SOWLES.  559 

talked  about  contesting  the  will  ;  that  plaintiff  said  that  he  had 
come  out  to  test  the  will  ;  that  he  thought  it  was  not  a  will 
Mr.  Bellows  ever  made  ;  that  he  thought  it  was  got  up  by  the 
defendant  and  his  wife  ;  that  defendant  replied,  that  was  no 
use  ;  that  he  had  seen  Aldis,  J.,  and  that  he  had  looked  the 
will  over  and  that  it  could  not  be  broken  ;  that  plaintiff  replied 
that  his  counsel  told  him  that  it  could  ;  that  defendant  then 
wanted  to  know  what  he  wanted,  and  plaintiff  said  he  ought  to 
have  ^10,000  ;  and  defendant  replied,  that  was  too  much  ; 
whereupon  plaintiff  said  the  Atwood  boys  got  $5000  each,  and 
that  he  (plaintiff)  was  nearer  to  deceased  than  they,  and  that 
his  counsel  advised  him  not  to  take  anything  less  than  $10,000  ; 
that  defendant  said  he  wanted  to  get  the  matter  straightened 
out  as  soon  as  he  could,  and  if  it  was  contested  it  was  agoing 
to  expose  a  great  many  things  that  he  would  rather  be  kept 
back  ;  that  it  was  agoing  to  make  taxes  higher,  and  everything 
else  ;  that  defendant  then  asked  him  if  plaintiff  would  take 
$5000  ;  and  that  plaintiff  then  consulted  with  his  brother  pri- 
vately, and  concluded  he  had  better  accept  than  to  go  on  and 
have  a  lawsuit  about  it  ;  and  thereupon  told  defendant  he 
would  accept  it  ;  that  defendant  said  if  he,  plaintiff,  would  not 
appear  to  contest  the  will,  and  would  try  to  prevent  others  from 
doing  it,  he  should  have  as  much  as  that  ;  that  he,  plaintiff, 
proposed  to  put  it  in  writing,  but  defendant  said  to  him,  "  Do 
you  doubt  my  word  ?"  and  plaintiff  replied,  "  I  don't  doubt 
your  word  ;"  that  plaintiff  was  not  to  enter  an  appeal  from  the 
allowance  of  the  will  ;  that  defendant  agreed  to  pay  the  $5000 
as  soon  as  he  was  satisfied  that  nobody  appeared  to  contest  the 
will,  after  the  twenty  days  from  its  allowance  had  passed  ;  that 
plaintiff  said  he  would  take  the  offer  ;  that  defendant  asked 
plaintiff  if  he  thought  there  were  any  others  who  were  coming- 
in  to  contest  the  will  ;  that  plaintiff  said  he  did  not  know  of 
any  others,  except  it  was  Charlotte  Law  ;  that  plaintiff  said  he 
would  go  and  see  her,  and  if  she  had  a  notion  to  come  down 
and  contest  the  will,  he  would  try  and  persuade  her  not  to,  and 
the  defendant  said  he  thought  that  he,  plaintiff,  had  better  see 
her  ;  that  Mrs.  Law  was  a  niece  of  said  Hiram  Bellows,  and 
lived  in  Cambridge,  Vt. ;  that  within  three  or  four  days,  and 
before  the  twenty  days  had  expired,  he,  the  plaintiff,  did  see 
Mrs.  Law  and  did  use  his  influence  with  her  not  to  contest  the 
will,  but  he  did  not  influence,  or  attempt  to  influence,  any  one 
else  in  that  respect.  There  was  no  evidence  in  the  case  that 
Mrs.  Law  ever  designed  or  intended  to  contest  the  will,  but,  on 
the  contrary,  Mrs.  Law  testified  that  she  did  not  make  any 
preparation  to  contest  the  will,  and  that   she  thought  she  never 


560  BELLOWS   V.    SOWLES.  [CHAP.  I. 

designed  to,  and  that  plaintiff  did  not  use  his  influence  with  her 
not  to  contest  the  will.  The  defendant's  evidence,  which  was 
uncontradicted  in  this  respect,  showed  that  Mr.  Bellows,  at  the 
time  he  drew  up  and  executed  his  will,  was  a  man  of  great  firm- 
ness and  decision  of  character,  and  not  easily  influenced  by- 
others  ;  that  the  wull  was  composed  and  written  by  him,  and 
was  introduced  in  evidence  ;  that  he,  with  his  family,  lived 
in  the  same  family  with  said  Bellows  for  twelve  or  thirteen 
years  previous  to  the  death  of  said  Bellows  ;  and  that  no 
influence  was  ever  had  or  attempted  upon  him  in  regard  to  his 
will. 

The  defendant  filed  a  motion  for  a  verdict  : 

I.  Because  said  declaration  does  not  allege  that  the  plaintiff 
had  been  left  out  of  the  will  through  any  undue  influence  ; 
2.  There  is  no  evidence  in  the  case  tending  to  show  that  any 
undue  influence  had  been  used  ;  3.  There  is  no  evidence  in  the 
case  tending  to  show  that  any  reasonable  doubt  existed  as  to 
the  validity  of  the  will  ;  4.  The  evidence  shows  that  plaintiff  has 
no  cause  of  action. 

Motion  overruled.  The  defendant  requested  the  Court  to 
charge  the  jury. 

First,  that  the  statement  of  plaintiff,  that  defendant  said  to 
him  his  wife  could  wind  Mr.  Bellows  round  her  fingers,  is  not 
to  be  considered  by  them  as  evidence  tending  to  show  that  any 
undue  influence  had  been  used.  Second,  that  if  the  jury  find 
that  Charlotte  Law  was  not  intending  to  contest  the  validity  of 
the  will,  or  that  if  plaintiff  did  not  use  his  influence  with  her  to 
have  her  allow  said  will  to  be  approved,  they  should  render  a 
verdict  for  the  defendant.  Third,  that  there  is  no  evidence  in 
the  case  tending  to  show  any  just  cause  why  the  will  should 
not  have  been  admitted  to  probate  as  valid,  nor  that  any  doubt 
existed  as  to  its  validity,  and  that  their  verdict  should  be  for 
the  defendant.  Fourth,  that  if  the  jury  find  that  the  plaintiff 
as  a  reasonable,  prudent,  and  conscientious  man,  had  no  good 
ground  to  believe  that  any  undue  influence  had  been  used,  and 
had  no  good  reason  to  doubt  the  validity  of  the  will,  then  the 
verdict  should  be  for  the  defendant. 

Edson,  Start  cr'  Cross  and  L.  P.  Poland  for  the  defendant. 

The  Court  refused  the  requests.  After  verdict  the  de- 
fendant filed  a  motion  in  arrest.  The  reasons  given  were  nearly 
like  those  in  the  motion  for  a  verdict.  Motion  overruled.  The 
defendant  then  moved  to  set  aside  the  verdict  and  for  a  new 
trial,  on  the  ground  that  one  of  the  jurymen  was  an  alien. 
This  motion  was  tried  by  the  Court,  and  the  Court  found  that 
he  was  a  citizen.     Questions  arose  as  to  the  admission  of  certain 


SEC.  II/.]  BELLOWS   V.    SOWLES.  561 

evidence  on  this  motion  ;  but  it  is  not  necessary  to  state  them, 
as  they  were  not  decided  by  the  Court. 

Wilson  6^  Jfall,    G.   A.  Ballard,  Noble  &•  Smith,  and   Farrifig- 
ton  &'  Post  for  the  plaintiff. 

Ross,  J.  The  exceptions  taken  on  the  trial,  as  well  in  regard 
to  the  defendant's  motion  for  a  verdict,  as  in  regard  to  the  re- 
fusal of  the  Court  to  charge  as  requested,  relate  mainly  to  the 
subject  of  the  consideration  for  the  defendant's  promise.  This 
subject,  and  the  particular  phase  of  it  involved  in  this  case,  was 
under  consideration  in  Ormsbee  v.  Howe,  54  Vt.  182.  •  It  is 
there  said  :  "  The  compromise  of  a  doubtful  right  is  a  sufficient 
consideration  for  a  promise,  and  it  does  not  matter  on  whose 
side  the  right  ultimately  turns  out  to  be."  The  soundness  of 
this  proposition  is  not  fairly  open  for  debate.  It  is  elementary. 
The  plaintiff  was  heir  at  law  of  Hiram  Bellows.  He  was  inter- 
ested in  whatever  disposition  he  made  of  his  property.  He  had 
the  right  to  oppose  the  establishment  of  any  will  made  by  him 
when  offered  for  probate.  Not  being  a  legatee  or  devisee  in 
the  will  of  Hiram  Bellows,  it  was  for  the  plaintiff's  interest  to 
prevent  the  establishment  of  the  will.  The  defendant  was 
named  executor  in  the  will,  and  his  wife  and  daughter  were 
special  legatees,  and  his  wife  the  residuary  legatee.  He  was, 
therefore,  interested  in  the  establishment  of  the  v.'ill.  Hence, 
if  the  plaintiff  had  any  reasonable,  bond  fide  ground  to  oppose 
the  establishment  of  the  will,  and  forbore  to  exercise  such  right 
at  the  request,  and  because  of  the  promise  of  the  defendant, 
such  promise  would  be  founded  upon  a  good  consideration. 
There  was  evidence  tending  to  show  such  forbearance  and 
promise.  By  such  forbearance  the  defendant  gained  what  was 
of  value  to  him,  the  establishment  of  the  will  without  delay  or 
opposition,  and  at  less  expense,  and  the  plaintiff  lost  what 
might  be  of  value  to  him,  the  opportunity  to  oppose  its  estab- 
lishment, either  of  which  was  a  good  consideration  for  the 
promise.  It  was  not  necessary  for  the  plaintiff  to  allege  and 
prove  that  his  ground  of  opposition  to  the  will  would  have  been 
found  sufficient  to  have  defeated  its  establishment.  It  was 
enough  if  he  had  an  honest,  reasonable  ground  of  opposition 
and  intended  to  use  it,  and  forbore  to  do  so  on  account  of  the 
defendant's  promise.  Hence  the  defendant  was  not  entitled  to 
have  his  motion  to  have  a  verdict  ordered  by  the  Court  in  his 
favor  complied  with.  The  plaintiff  was  neither  bound  to  allege 
nor  prove  that  undue  influence  had  been  used  to  procure  the 
making  of  the  will.  But  he  was,  when  that  was  brought  in 
question,  bound  to  show  that  he  honestly  thought  he  had  good 
and  reasonable  ground   for  making  the  claim  that  the  will  so 


562  BELLOWS   V.    SOWLES.  [cHAP.  I, 

far  as  it  related  to  him  was  the  production  of  undue  influence^ 
and  for  that  reason  he  honestly  intended  to  oppose  its  establish- 
ment. Whether  the  plaintiff,  acting  as  a  reasonable,  prudent, 
and  conscientious  man,  had  good  ground  to  believe  undue  in- 
fluence had  been  used,  and  for  that  cause  he  had  good  reason 
to  doubt  the  validity  of  the  will,  and  therefore  honestly  pro- 
posed to  oppose  its  establishment,  or  whether  he  had  no  good 
ground  to  believe  undue  influence  had  been  used,  and  so  had 
no  o-ood  reason  to  doubt  the  validity  of  the  will,  and  dishonestly 
put  the  same  forth  as  a  ground  of  opposition  to  the  establish- 
ment of  the  will,  makes  a  very  material  difference  in  regard  to 
the  consideration  his  action  would  afford  to  support  the  defend- 
ant's promise  to  pay  him  $5000  for  forbearing  to  oppose  the 
establishment  of  the  will.  On  the  first  supposition  his  forbear- 
ance would  be  the  yielding  of  a  right  which  he  honestly  upon 
reasonable  grounds  supposed  existed  and  intended  to  assert, 
and  would  furnish  ample  consideration  for  the  defendant's 
promise.  On  the  latter  hypothesis,  his  opposition  to  the  will  was 
dishonest,  unfounded,  factitious,  and  set  up  to  extort  money 
from  the  defendant.  In  short,  his  opposition  to  the  will,  if  suc- 
cessful, would  be  a  blackmailing  operation.  There  is  no  essen- 
tial conflict  in  the  authorities  produced  by  the  parties  on  this 
subject.  Cases  can  be  found  where  no  claim  is  made  but  that 
the  compromised  right  was  an  honest  one,  honestly  entertained 
and  asserted,  and  in  which  no  reference  is  made  to  the  bo7id  fide 
character  of  the  transaction.  The  doubtful  right  compromised, 
to  be  a  good  consideration  for  a  promise,  must  upon  reasonable 
grounds  be  honestly  entertained  by  the  person  proposing  to 
assert  it.  It  is  neither  necessary  to  allege  nor  prove  that  the 
right  actually  existed.  The  case  of  Ormsbee  v.  Howe,  supra,  is 
in  point.  If  money  has  been  actually  paid  in  compromise  of  a 
false  and  fraudulent  claim  dishonestly  made  and  asserted,  it 
may  be  recovered  back  as  held  in  Hoyt  v.  Dewey,  50  Vt.  465. 
Upon  these  views  of  the  law  the  defendant's  first  and  third 
requests  were  properly  refused  ;  but  his  fourth  request  should 
have  been  substantially  complied  with.  It  is,  however,  claimed 
that  if  the  plaintiff  yielded  no  right,  the  defendant  gained  by 
the  compromise  in  that  he  avoided  delay  and  expense  in  the 
establishment  of  the  will,  and  for  this  reason  he  should  be  held 
to  perform  his  promise.  But  if  the  plaintiff's  opposition  to  the 
establishment  of  the  will  was  fraudulent  and  put  forth  to  extort 
money,  he  would  not  only  yield  nothing,  but  the  defendant 
would  gain  nothing,  by  the  compromise — that  is,  there  would 
be  no  compromise,  because  nothing  on  one  side  of  it.  A  com- 
promise is  the  yielding  of  something  by  each  of  two  parties,  and 


SEC.  II/.]  MILES  v.  NEW  ZEALAND  ALFORD  ESTATE  CO.  563 

can  only  exist  when  something  is  yielded  by  each  party  to  it. 
Besides,  /rand  in  the  foundation  of  a  claim  permeates  the  whole 
superstructure,  taints  and  vitiates  the  entire  transaction.  Orms- 
bee  V.  Howe,  supra.  It  is  probable  the  plaintiff  in  such  a  case 
would  be  liable  for  whatever  expense  he  should  cause  the  de- 
fendant by  the  dishonest  assertion  of  a  false  claim  to  extort 
money.  Hoyt  v.  Dewey,  supra.  The  defendant's  motion  in 
arrest  of  judgment,  on  these  views,  was  properly  overruled. 

The  other  questions  arising  on  the  motion  for  a  new  trial  in 
regard  to  the  disqualification  of  the  juror  Hibbard,  will  never 
arise  again  probably  in  the  new  trial  of  this  case,  and  need  not 
be  considered.  It  presents  some  nice  questions  in  regard  to 
presumptions  which  are  not  altogether  free  from  difficulty.  On 
the  exceptions  the  judgment  of  the  County  Court  is  reversed, 
and  cause  remanded  for  a  new  trial. 

The  petition  for  a  new  trial  is  not  sustained.  The  alleged 
matter  is  so  far  collateral  to  the  main  issue  that  the  Court  can- 
not say  it  would,  if  established,  avail  to  change  the  result  if  a 
new  trial  should  be  granted  thereon.  The  same  is  dismissed 
with  costs  to  the  petitionee. 


MILES  V.  NEW   ZEALAND   ALFORD    ESTATE 
COMPANY. 

In  the  Court  of  Appeal,  February  ii,  1886. 
[Reported  in  Law  Reports,  32  Chancery  Division  266.] 

The  New  Zealand  Alford  Estate  Company,  Limited,  was  in- 
corporated under  the  Companies  Acts  of  1862  and  1867,  with 
articles  of  association,  the  material  clauses  of  which  were  as 
follows  : 

"  8.  The  company  shall  not  be  bound  to  recognize  any  con- 
tingent, future,  partial,  or  equitable  interest,  in  the  nature  of  a 
trust  or  otherwise,  in  any  share,  or  any  other  right  in  respect 
of  any  share,  except  an  absolute  right  thereto  in  the  person  from 
time  to  time  registered  as  the  holder  thereof.   ..." 

"  23.  No  shares  shall  be  transferred  to  a  stranger  so  long  as 
the  company  or  any  member  is  willing  to  purchase  the  same  at 
a  fair  value." 

"  28.  The  company  may  decline  to  register  any  transfer  of 
shares  upon  which  the  company  has  a  lien  by  virtue  of  clause  43 
hereof." 


564  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  [cHAP.  I. 

"  43.  The  company  shall  have  a  first  and  paramount  lien  upon 
all  the  shares  of  each  member  for  his  debts,  liabilities,  and  en- 
gagements, solely  or  jointly  with  any  other  person,  to  or  with 
the  company,  whether  the  period  for  the  payment,  fulfilment, 
or  discharge  thereof  shall  have  actually  arrived  or  not." 

"  44.  For  the  purpose  of  enforcing  such  lien  the  directors 
may  sell  the  shares  subject  thereto  without  any  notice  to  or 
consent  by  the  holder  of  such  shares,  or  any  other  person  ;  but 
no  sale  shall  be  made  unless  and  until  default  be  made  in  the 
payment,  fulfilment,  or  discharge  of  such  debts,  liabilities,  or 
engagements." 

The  defendant,  Samuel  Grant,  who  was  one  of  the  promoters 
of  the  company,  was  in  May,  1882,  and  at  the  hearing  of  this 
action  was  still,  the  registered  holder  of  125  shares  of  ;^  100  each 
in  the  company.  In  May,  1882,  when  ^40  apiece  had  been 
paid  up  on  these  shares,  Grant  accepted  and  discounted  two 
accommodation  bills  payable  at  six  and  eighteen  months  after 
date  for  ^5000  each,  drawn  on  him  by  the  plaintiff,  E.  P.  W. 
Miles,  applied  the  proceeds  to  his  own  use,  and  deposited  the 
certificates  of  his  shares  with  the  plaintiff. 

.  By  indenture  dated  October  19th,  1882,  the  defendant  Grant 
charged  his  125  shares  with  the  two  sums  of  ;^5ooo  and  inter- 
est thereon  at  ^^  per  cent  per  annum,  and  covenanted  at  any 
time  during  the  continuance  of  the  security  to  execute  a  legal 
transfer  of  the  shares  in  favor  of  the  plaintiff  ;  and  by  an  agree- 
ment under  seal  of  the  same  date  Grant  covenanted  with  the 
plaintiff  to  pay  all  calls  upon  the  shares  during  the  continuance 
of  the  security,  and  it  was  agreed  that  in  default  the  plaintiff 
might  pay  such  calls  and  add  the  moneys  so  paid  with  interest 
thereon  to  his  security. 

On  November  4th,  1882,  notice  in  writing  of  the  plaintiff's 
interest  in  Grant's  125  shares  under  the  indenture  of  Octo- 
ber 19th,  1882,  was  served  upon  the  company,  and  this  notice 
was  acknowledged  by  the  company  on  November  6th,  and  was 
entered  in  the  share  register. 

When  the  bills  came  to  maturity  Grant  made  default  in  pay- 
ment, and  the  plaintiff  paid  them. 

A  call  of  jQ2o  per  share  was  made  by  the  company  on  Decem- 
ber i2th,  1882.  Grant  made  default  in  payment,  and  this  and 
the  subsequent  calls  made  by  the  company  were  paid  by  the 
plaintiff  in  order  to  avoid  a  forfeiture  of  the  shares. 

Grant,  besides  being  a  promoter  of  the  company  and  the 
holder  of  the  above-mentioned  shares,  was  the  vendor  to  the 
company  of  the  property  in  New  Zealand  known  as  the  Alford 
Estate,  the  acquisition  and  working  of  which  was  the  substan- 


SEC    II/.]  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  '-^Ct, 

tial  object  of  the  formation  of  the  company.  He  was  also  tlie 
chairman  of  the  board  of  directors,  and  at  a  general  meeting  of 
the  company  held  on  March  15th,  1883,  an  angry  discussion 
took  place,  at  the  close  of  which  he  gave  to  the  company  a 
written  guarantee  or  warranty  signed  by  himself  in  the  follow- 
ing terms  : 

"  Gentlemen  :  I  hereby  guarantee  that  a  dividend  (duly 
earned  during  the  year)  of  not  less  than  ^3  per  centum  per 
annum  be  paid  to  the  shareholders  for  the  year  ending  June  30th, 
1883,  and  afterward  that  there  shall  be  paid  to  them  a  yearly 
dividend  of  not  less  than  ^5  per  centum  per  annum  (duly 
earned  during  the  year)  for  a  period  of  ninety  years,  and  I 
undertake  within  three  calendar  months  after  the  end  of  any 
and  every  year  to  pay  to  you  any  sum  requisite  to  pay  the 
agreed  minimum  dividend  if  the  company  has  not  earned  it." 

No  resolution  was  passed  at  the  general  meeting  with  refer- 
ence to  the  giving  of  the  guarantee. 

Grant  was  adjudicated  a  bankrupt  on  February  i9tli,  1884. 
In  Ma}^  1884,  there  being  due  to  the  plaintiff  upon  the  security 
of  the  indenture  and  memorandum  of  agreement  of  Octo- 
ber 19th,  1882,  the  sum  of  ;;^7885,  he  applied  to  the  company  to 
do  and  concur  in  all  acts  necessary  for  effecting  a  sale  and 
transfer  of  the  125  shares. 

The  company,  however,  claimed  a  lien  on  the  shares  under 
the  guarantee  given  to  them  by  Grant  and  their  articles  of  asso- 
ciation, in  priority  to  the  plaintiff's  charge  ;  and  they  refused 
to  permit  any  sale  or  transfe:'  of  the  shares  until  their  claim 
was  satisfied.  The  plaintiff  then  brought  this  action  against 
the  company  and  Grant  and  his  trustee  in  bankruptcy,  and 
claimed  a  declaration  that  under  the  deed  of  October  19th, 
1882,  he  was  entitled  to  a  first  charge  on  the  125  shares  for  the 
principal  and  interest  secured  thereby,  and  for  all  sums  paid 
by  him  for  calls,  and  to  have  this  charge  enforced  by  fore- 
closure or  otherwise,  and  he  pleaded  that  the  guarantee  given 
by  Grant  was  not  under  seal,  that  no  consideration  had  been 
given  for  it,  and  that  even  if  consideration  had  been  given,  the 
document  did  not  comply  with  the  requirements  of  the  Statute 
of  Frauds.  To  this  the  company  rejoined  that  the  guarantee 
"  was  executed  as  part  of  a  contract  whereby  the  company  and 
the  shareholders  for  whose  benefit  it  was  executed,  in  consider- 
ation of  the  execution  by  the  defendant  S.  Grant  of  the  said 
documents,  agreed  to  put  an  end  to  certain  contemplated  pro- 
ceedings against  the  defendant  S.  Grant  and  to  give  up  certain 
claims  against  him,  and  that  they  did  in  pursuance  of  such  con- 


566  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  [chap,  l. 

tract  abandon  such  proceedings  and  give  up  such  claims  and 
accept  the  guarantee  in  full  accord  and  satisfaction  of  the  right 
of  action  founded  on  such  claims  ;"  and  they  pleaded  also  that 
the  said  contract  was  one  to  be  performed,  and  that  it  was  in 
fact  performed,  within  one  year  from  the  making  thereof.' 

The  action  came  on  for  trial  before  North,  J.,  upon  motion 
for  judgment  in  default  of  pleading  against  the  defendant 
Grant  and  his  trustee  in  bankruptcy,  and  was  heard  on  June  22d, 
23d,  and  24th,  1885.' 

Davey,  Q.C,  and  Stirling  for  the  plaintiff. 

Barber,  Q.C.,  and  Blake  Odgers  for  the  company. 

C.  Lucas,  the  trustee  in  bankruptcy  of  Grant,  did  not  appear. 

The  appeal  came  on  for  hearing  on  February  4th,  1886. 

Barber,  Q.C.,  and  Blake  Odgers  in  support  of  the  appeal. 

Davey,  Q.C.,  and  Stirling  for  the  plaintiff. 

Cotton,  L.J.  This  is  an  appeal  of  the  defendant  company 
from  a  judgment  of  North,  J.,  in  an  action  brought  by  the 
plaintiff  in  order  to  enforce  his  right  under  an  equitable  mort- 
gage on  shares  in  the  company,  and  two  questions  are  raised 
for  the  decision  of  the  Court.  First,  whether  the  company, 
supposing  them  to  have  a  legal  claim  against  Grant,  the  holder 
of  the  shares,  are  entitled  under  their  articles  of  association  to 
priority  for  that  claim  as  against  the  claim  of  the  plaintiff  ;  and, 
secondly,  whether  they  had  in  fact  any  legal  claim  against 
Grant. ^  North,  J.,  held  that,  in  fact,  they  had  a  good  claim, 
but  he  held,  on  the  authority  of  Bradford  Banking  Company  v. 
Briggs  &  Co.,*  as  decided  in  the  Court  below,  that  the  company 
were  not  entitled  in  priority  to  the  plaintiff. 

But  then  comes  the  question.  Had  the  company  in  fact  any 
legal  claim  as  against  Grant  ?  Their  claim  was  under  a  letter 
signed  by  Grant,  which  guarantees  or  undertakes  that  a  certain 
yearly  dividend  shall  be  paid  to  the  shareholders  during  a  long 
period  of  years,  and  it  is  objected  that  no  consideration  appears 
upon  the  face  of  the  letter,  and  that  no  consideration  was  in 
fact  given  to  Grant  for  that  promise  (I  call  it  "  promise,"  be- 
cause to  call  it  "  contract"  would  be  to  assume  there  was  con- 
sideration) given  by  the  shareholders. 

Now  there  was  much  argument  upon  the  question,  what  is  a 
good  consideration  for  a  compromise  ;  and  there  are  authorities 
which  for  a  considerable  time  were  considered  as  laying  down 

'  A  statement  of  the  evidence  relating  to  the  giving  in  fact  of  considera- 
tion has  been  omitted. — Ed. 

^  The  opmion  of  North,  J.,  has  been  omitted. — Ed. 

^  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question.— Ed. 

4  29  Ch.  D.  149. 


SEC.  II/.]  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  567 

the  law  upon  the  subject  ;  but  Lord  Esher,  the  present  Master 
of  the  Rolls,  in  ex  parte  Banner,'  is  supposed  to  have  thrown 
doubts  on  these  authorities  ;  and  what  he  said  was  in  fact  that 
if  the  question  ever  came  before  this  Court  the  authority  of 
Callisher  v.  Bischoffsheim,^  Ockford  v.  Barelli,^  and  Cook  v. 
Wright*  would  have  to  be  considered. 

Now,  what  I  understand  to  be  the  law  is  this,  that  if  there  is 
in  fact  a  serious  claim  honestly  made,  the  abandonment  of  the 
claim  is  a  good  "consideration"  for  a  contract  ;  and  if  that  is 
the  law,  what  we  really  have  to  now  consider  is  whether  in  the 
present  case  there  is  any  evidence  on  which  the  Court  ought  to 
find  that  there  was  a  serious  claim  in  fact  made,  and  whether  a 
contract  to  abandon  that  claim  was  the  consideration  for  this 
letter  of  guarantee.  I  am  not  going  into  the  question  at  pres- 
ent as  to  how  far  the  Statute  of  Frauds  will  raise  any  difficulty 
in  the  way.  And  I  think  also  that  the  mere  fact  of  an  action 
being  brought  is  not  material  except  as  evidence  that  the  claim 
was  in  fact  made.  That,  I  think,  was  laid  down  by  Lord  Black- 
burn in  Cook  V.  Wright,  and  also  in  Callisher  v.  Bischoffsheim, 
and,  subject  to  the  question  whether  these  cases  are  overruled, 
or  ought  to  be  considered  as  unsound,  that,  I  think,  is  a  correct 
statement  of  the  law.  Now,  by  "  honest  claim,"  I  think  is 
meant  this,  that  a  claim  is  honest  if  the  claimant  does  not  know 
that  his  claim  is  unsubstantial,  or  if  he  does  not  know  facts,  to 
his  knowledge  unknown  to  the  other  party,  which  show  that 
his  claim  is  a  bad  one.  Of  course,  if  both  parties  know  all  the 
facts,  and  with  knowledge  of  those  facts  obtain  a  compromise, 
it  cannot  be  said  that  that  is  dishonest.  That  is,  I  think,  the 
correct  law,  and  it  is  in  accordance  with  what  is  laid  down  in 
Cook  T.  Wright^  and  Callisher  v.  Bischoffsheim*  and  Ockford  v. 
Barelli.'  What  was  stated  in  Cook  v.  Wright'  by  Lord  Black- 
burn is  this  :  "  We  agree  that  unless  there  was  a  reasonable 
claim  on  the  one  side,  which  it  was  bond  fide  intended  to  pursue, 
there  would  be  no  ground  for  a  compromise  ;  but  we  cannot 
agree  that  (except  as  a  test  of  the  reality  of  the  claim  in  fact) 
the  issuing  of  a  writ  is  essential  to  the  validity  of  the  compro- 
mise." Again,  what  his  Lordship  says  in  the  subsequent  case 
of  Callisher  v.  Bischoffsheim^  is  this  :  "  If  we  are  to  infer  that 
the  plaintiff  believed  that  some  money  was  due  to  him,  his  claim 
was  honest,  and  the  compromise  of  that  claim  would  be  binding 
and  would  form  a  good  consideration,  although  the  plaintiff,  if 
he  had   prosecuted   his   original    claim,    would   have  been  de- 

'  17  Ch.  D.  480.  "  I  B  &  S.  569.  '  20  W.  R.  116. 

«  Law  Rep.  5  Q.  B.  449.     ^  Ibid.    559.  »  i  B.  &  S.  569. 

3  20  W.  R.  116.  «  Law  Rep.  5  Q.  B.  449.     »  Law  Rep.  5  Q.  B.  452. 


568  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  [cHAP.  I. 

feated."  The  doubt  of  the  Master  of  the  Rolls  seems  to  have 
been  whether  a  compromise  would  not  be  bad,  or  a  promise  to 
abandon  a  claim  would  be  a  good  consideration  if,  on  the  facts 
being  elicited  and  brought  out,  and  on  the  decision  of  the  Court 
being  obtained,  it  was  found  that  the  claim  which  was  consid- 
ered the  consideration  for  the  compromise  was  a  bad  one.  But 
if  the  validity  of  a  compromise  is  to  depend  upon  whether  the 
claim  was  a  good  one  or  not,  no  compromise  would  be  effectual, 
because  if  it  was  afterward  disputed,  it  would  be  necessary  to 
go  into  the  question  whether  the  claim  was  in  fact  a  good  one 
or  not  ;  and  I  consider,  notwithstanding  the  doubt  expressed 
by  the  Master  of  the  Rolls,  that  the  doctrine  laid  down  in 
Cook  V.  Wright  and  Callisher  v.  Bischoffsheim  and  Ockford  v. 
Barelli  is  the  law  of  this  Court. 

Now  was  there  here  any  claim  in  fact  made  on  behalf  of  the 
company  against  Grant,  and  was  there,  in  fact,  anything  which 
would  bind  the  company  to  abandon  that  claim.  The  conclu- 
sion at  which  I  have  arrived  is,  that  there  is  no  evidence  on  which 
we  ought  to  rely  that  there  was  in  fact  a  claim  intended  to  be 
made  against  Grant,  and,  in  my  opinion,  on  the  evidence  before 
us,  we  ought  not  to  arrive  at  the  conclusion  that  there  was  ever 
intended  to  be  any  contract  by  the  company,  much  less  that 
there  was  in  fact  any  contract  binding  the  company  that  that 
claim  should  not  be  prosecuted,  and  should  be  given  up.  [His 
Lordship  alluded  shortly  to  the  facts  of  the  case,  and  continued.] 
Now,  undoubtedly,  on  the  evidence,  several  of  the  shareholders 
present  at  the  general  meeting  of  March  15th,  1883,  expressed 
a  very  hostile  feeling  against  Mr.  Grant,  who  had  sold  the  prop- 
erty to  the  company  ;  that  is  admitted  by  him,  and  is  in  my 
opinion  clear.  But  then  what  was  done  ?  There  is  nothing  at 
all  on  the  face  of  this  letter  of  guarantee,  as  I  have  already 
stated,  which  says  that  it  was  given  by  Grant  in  consequence 
of  the  company  giving  up  any  claim  they  might  have  against 
him,  and  there  is  nothing  whatever  in  the  minutes  of  the  board 
which  states  in  fact  that  this  was  so,  nor  is  there  anything  after 
that  time  in  the  minutes  of  the  board  of  directors  which  can  be 
referred  to  as  showing  an  agreement  by  them  to  give  up  any 
claim  they  otherwise  intended  to  prosecute  against  him.  What 
I  should  say  was  the  state  of  the  case  is  this — there  was  angry 
feeling,  and  Mr.  Grant  thought  it  might  result  in  proceedings 
being  taken  against  him  ;  and,  therefore,  what  he  considered 
the  wisest  course  was  to  make  this  offer  in  the  hope  and  expec- 
tation that  he  would  keep  things  quiet,  and  let  things  go  on 
peaceably. 

Now,  in  my  opinion,  a  simple  expectation,  even  though  real- 


SEC.  II/.]  MILES  V.  NEW  ZEALAND  ALFOkl)  ESTATE  CO.  569 

ized,  would  not  be  a  good  consideration  for  the  promise  which 
he  gave.  In  order  to  make  a  good  consideration  for  the  prom- 
ise there  must  be  something  binding  done  at  the  time  by  tlie 
other  party,  there  must  be  something  moving  from  the  other 
party  toward  tlie  person  giving  the  promise.  In  my  opinion, 
to  make  a  good  consideration  for  this  contract,  it  must  be  shown 
that  there  was  sometliing  which  would  bind  the  company  not 
to  institute  proceedings,  and  shown  also  that  in  fact  proceed- 
ings were  intended  on  behalf  of  the  company  ;  and,  in  my  opin- 
ion, I  cannot  come  to  the  conclusion  as  a  matter  of  fact  that 
these  two  things  existed.  It  is  true  that  directors  were  present 
at  the  meeting,  and  that  their  guarantee  was  entered  on  the 
minutes,  but  although  this  was  the  case,  it  cannot  in  my  opinion 
be  considered  that  the  directors  by  being  there  entered  into  any 
contract  as  directors  not  to  enforce  the  claim  of  the  company. 
The  proper  mode  of  proving  any  agreement  made  by  the 
directors  would  be  the  production  of  evidence  of  its  having 
been  made  at  a  meeting  held  by  them  as  the  persons  having 
the  conduct  of  the  business  of  the  society.  No  doubt,  they 
might,  if  they  had  been  so  minded,  at  a  meeting  of  the  board 
agree  that  they  should  not  make  any  claim  against  him  in  con- 
sideration of  this  having  taken  place,  but  I  find  nothing  of  that 
kind. 

Again,  this  is  an  incorporated  company,  and  even  if  any 
statement  had  been  made  at  this  meeting  that  no  proceedings 
should  be  taken,  yet  to  bind  the  company  there  ought  to  be 
something  done  by  way  of  a  resolution,  and  mere  statements 
by  individual  members  that  they  were  satisfied  with  this  guar- 
antee would  not  in  any  way  bind  the  company  so  as  to  prevent 
them  from  taking  proceedings  if  they  ever  intended  to  do  so. 
In  my  opinion  this  promise  was  given  in  the  expectation  that 
this  would  be  a  sop  to  the  angry  shareholders,  and  that  no  pro- 
ceedings would  be  taken.  The  mere  fact  that  none  have  been 
taken,  will  not  in  my  opinion  make  that  a  consideration,  unless 
(putting  aside  the  question  as  to  the  company  being  bound) 
something  was  done  or  said  in  such  a  way  as  to  be  the  action 
or  saying  of  the  company,  that  if  this  guarantee  was  given  no 
proceedings  would  be  taken.  Of  course  if  this  company  were 
an  individual,  and  the  individual  made  a  representation  that  if 
this  guarantee  was  given  he  would  take  no  proceedings,  that 
would  be  a  contract  binding  him,  but  in  my  opinion  if  a  com- 
pany is  to  be  bound,  it  ought  to  be  bound  by  some  more  formal 
proceedings,  either  by  the  action  of  the  directors  sitting  as 
such,  or  by  something  equivalent  to  a  resolution  of  the  share- 
holders in  general  meeting. 


■J 


5/0  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  [CHAP.  I. 

North,  J.,  although  he  decided  in  favor  of  the  plaintiff,  has 
held  that  there  was  sufficient  consideration  for  the  guarantee  ; 
and  if  he  had  come  to  the  conclusion  that  there  was  upon  the 
evidence  before  him  that  which  amounted  to  a  contract  binding 
the  company,  then  I  should  undoubtedly  feel  some  difficulty, 
because  he  had  a  better  opportunity  of  judging  of  the  evidence 
than  we  can  have.  But,  on  reading  his  judgment,  I  come  to 
the  conclusion  that  he  rather  considered  there  was  an  expecta- 
tion than  that  this  would  be  the  result,  and  that  if  that  expecta- 
tion was  pel  formed  and  completed,  this  would  be  enough  to 
give  a  consideration. 

Undoubtedly,  the  evidence  of  Mr.  Grant  cannot  be  considered 
very  satisfactory,  and  it  is  not  very  satisfactory  to  find  that 
Mr.  Redmayne,  the  secretary  of  the  company,  who  was  the  wit- 
ness on  the  other  side,  was  not  cross-examined,  but,  looking  at 
the  evidence  of  Mr.  Redmayne,  I  cannot  see  that  he  states  as  a 
fact  that  there  was  an  intention  to  take  proceedings,  or,  as  a 
fact,  that  anything  took  place  at  the  meeting  which  could  be 
considered  as  a  representation  by  the  company,  or  by  the  direct^ 
ors,  or  by  any  of  those  present,  that  these  proceedings,  in  fact 
intended,  should  be  abandoned. 

[His  Lordship  then  read  paragraph  4  of  Mr.  Redmayne's 
affidavit,  and  continued.] 

Now,  it  was  admitted  by  the  counsel  for  the  company  that 
what  is  there  referred  to  is  the  resolution  passed  at  the  meeting 
of  the  directors  on  January  22d,  and  we  see  what  the  witness 
turns  it  into  in  his  affidavit.  That  is  his  strongest  statement. 
He  does  say,  indeed,  in  paragraph  5  that  at  the  meeting  of  the 
company  on  March  15th,  1883,  Grant  "  was  told  that  it  was  the 
intention  of  the  defendant  company  to  take  immediate  pro- 
ceedings against  him,"  but  he  does  not  say  it  was  so  intended, 
and  the  remainder  of  this  paragraph  is  expressed  in  doubtful 
terms,  so  that,  in  my  opinion,  we  ought  not  to  rely  upon  that 
evidence  as  proving  that  anything  took  place  at  the  meeting 
amounting  to  a  contract  binding  the  company  to  abandon  pro- 
ceedings which  were,  in  fact,  intended  to  be  brought.  And,  in 
my  opinion,  it  was  necessary  to  establish  that  there  was  a  claim 
in  fact  made  and  abandoned.  North,  J.,  relies  very  much  upon 
the  consideration  that  no  action  was  in  fact  brought.  But  I 
think  it  is  hardly  necessary  to  deal  with  that,  for  it  may  be  that 
this  sop  was  sufficient  to  calm  the  angry  spirit  ;  and  the  fact 
that  no  action  was  brought  does  not  show  that  there  was  any 
contract  not  to  bring  an  action. 

North,  J.,  seems  to  have  been  much  pressed  by  the  consider- 
ation  that   Mr.    Grant  always  looked   upon   this  as  a  binding 


SEC.  II/.]  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  57 1 

agreement.  How  far  Mr.  Grant  was  aware  of  the  law  as  to 
consideration  one  does  not  know,  but  undoubtedly  he  did  not 
intend  the  guarantee  to  be  illusory  ;  undoubtedly  he  looked 
upon  it  as  a  promise,  and  it  has  been  argued  that  he  would  not 
have  made  this  promise  unless  he  got  something  for  it.  In  my 
opinion,  however,,  the  evidence  shows  that  he  did  not  regard  it 
as  a  contract. 

I  come  accordingly  to  the  conclusion  that  there  is,  in  fact,  no 
consideration  to  support  the  guarantee  on  which  the  company 
rely,  and  to  make  it  a  contract  binding  on  Mr.  Grant  ;  and  as 
I  have  come  to  the  conclusion  that  there  was  not  sufficient  con- 
sideration to  support  the  promise,  it  is  not  necessarj'  for  me  to 
enter  into  the  question  as  to  the  Statute  of  Frauds. 

BowEN,  L.J.  But  then  comes  this  further  important  ques- 
tion. Mr.  Davey  endeavored  to  support  the  decision  appealed 
from  on  a  question  of  fact,  by  displacing  upon  the  evidence  the 
verdict  passed  by  North,  J.,  which,  so  far  as  that  question  of 
fact  is  concerned,  was  against  him.  Therefore  we  have  to  de- 
termine whether  or  no  there  was  any  consideration  for  this 
guarantee,  and  it  is  upon  that  point  that  I  am,  with  great  re- 
gret, obliged  to  state  that  my  opinion  is  at  variance  with  the 
view  at  which  Cotton,  L.J.,  has  arrived.  The  inquiry  whether 
there  was  or  was  not  consideration  for  this  guarantee  renders 
it  necessary  to  say  some  words  upon  the  law,'  and  then  to  apply 
the  law  to  the  question  of  fact. 

Speaking  broadly,  what  has  to  be  determined  is,  in  my  opin- 
ion, whether  there  was  at  a  critical  moment  any  forbearance  to 
press  a  real  claim  on  the  part  of  the  company,  or  of  the  directors 
of  the  company,  who  had  ample  powers  under  their  articles  of 
association  to  act  for  the  company,  and,  if  so,  whether  such  for- 
bearance was  brought  about  by  the  express  or  implied  request 
of  Mr.  Grant,  and  in  consideration  of  his  guarantee.  A  valu- 
able consideration  may,  of  course,  either  consist  of  some  right, 
interest,  profit,  or  benefit  which  accrues  to  one  party,  or  some 
forbearance,  or  detriment,  or  loss,  or  responsibility,  which  is 
given  to  or  undertaken  by  the  other.  We  have  to  see  here  in 
the  first  place  whether  there  was  forbearance  promised,  in 
which  case  the  promise  would  be  the  consideration  for  the  guar- 
antee, cr  whether  there  was  an  actual  forbearance  given  at  the 
request  of  the  guarantor  and  in  return  for  something.  The 
two  views  run  very  close  together.  If  the  directors,  in  consid- 
eration of  this  guarantee,  made  an  actual  agreement  to  forbear, 
they  really  took  the  agreement  in  accord  and  satisfaction  of  any 
claims,   if  there  were  claims,   and   beyond   that  agreed  not  to 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


572  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  [cHAP.  I. 

prosecute  ihe  question  whether  there  were  any  ;  but  such  an 
agreement  as  that  need  not  be  in  writing.  It  seems  to  me  there 
is  no  magic  at  all  in  formalities,  and  that  there  would  be  ample 
evidence  of  such  an  agreement,  if  this  guarantee  to  the  knowl- 
edtJ-e  of  both  parties  w^as  given  and  accepted  upon  the  under- 
standing that  no  proceedings  should  be  instituted.  But  I  do 
not  accept  the  proposition  that  this  guarantee  cannot  be  effec- 
tual and  supported  by  consideration  unless  there  is  at  the  moment 
it  was  given  something  to  bind  the  company.  If  the  guarantee 
were  given  on  the  condition  and  on  the  contingency  that  there 
should  be  forbearance,  and  was  taken  upon  that  condition,  and 
upon  that  contingency,  and  the  contingency  afterward  hap- 
pened, then  the  forbearance  when  given,  being  at  the  request 
;  expressed  or  implied  of  the  guarantor,  would  furnish  an  implied 
consideration  for  the  guarantee  which  had  already  been  given. 
That  is,  I  think,  no  new  law.  In  Oldershaw  v.  King'  there  was 
a  guarantee  given  to  the  following  effect  :  "  I  am  aware,"  said 
the  guarantor,  "that  my  uncles,  Messrs.  J.  and  J.  F.  King, 
stand  considerably  indebted  to  you  for  professional  business, 
and  for  cash  lent  and  advanced  to  them,  and  that  it  is  not  in 
their  power  to  pay  you  at  present,  and  as  in  all  probability  they 
will  become  further  indebted  to  you,  though  I  by  no  means 
intend  that  this  letter  shall  create  or  imply  any  obligation  on 
your  part  to  increase  your  claim  against  them,  I  am  willing  to 
bear  you  harmless  against  any  loss  arising  out  of  the  past  and 
future  transactions  between  you  and  my  said  uncles  to  a  certain 
extent,  and  therefore  in  consideration  of  your  forbearing  to 
press  them  for  the  immediate  payment  of  the  debt  now  due  to 
you,  I  hereby  engage  and  agree  to  guarantee  you  the  payment 
of  any  sum  they  may  be  indebted  to  you  upon  the  balance  of 
accounts  between  you  at  any  time  during  the  next  six  years,  to 
the  extent  of  ^looo,  whenever  called  upon  by  you  to  pay  the 
same,  and  after  twelve  calendar  months'  previous  notice."  In 
that  case,  Erie,  J.,  expressed  himself  in  the  following  language  : 
"  Looking  at  the  whole  letter,  and  the  circumstances  under 
which  it  was  written,  and  considering  the  importance  of  further 
advances,  I  come  to  the  conclusion,  that  the  consideration  con- 
templated was,  that  further  advance  should  be  made,  and  time 
given  by  the  creditor  before  he  would  press  for  the  payment  of 
the  existing  debt  Though  the  contract  did  not  bind  the  cred- 
itor to  make  further  advances,  or  to  give  time  unless  he  chose 
to  do  so,  it  is  clear  that  if  he  did  make  the  advances  and  did 
give  time,  that  which  was  contingent  at  the  time  when  the 
instrument  was  written  became  an  absolute  and  binding  con- 
>  2  H.  &  N.  399,  517,  520. 


SEC.  II/.]  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  573 

tract."  The  same  principle  was  applied  in  the  case  of  the  Alli- 
ance Bank  v.  Broom.'  "  It  appears  to  me,"  said  the  Vice-Chan- 
cellor/ "  that  when  the  plaintiffs  demanded  payment  of  their 
debt,  and,  in  consequence  of  that  application,  the  defendant 
agreed  to  give  certain  security,  although  there  was  no  promise 
on  the  part  of  the  plaintiffs  to  abstain  for  any  certain  time  from 
suing  for  the  debt,  the  effect  was,  that  the  plaintiffs  did,  in 
effect,  give,  and  the  defendant  received,  the  benefit  of  some 
degree  of  forbearance  ;  not,  indeed,  for  any  definite  time,  but, 
at  all  events,  some  extent  of  foibearance."  So  it  will  be  suffi- 
cient here  that  the  directors  did  forbear,  if  their  forbearance 
was  at  the  request  expressed  or  implied  of  the  guarantor  and  in 
consequence  of  his  guarantee  being  given,  and  it  seems  to  me 
there  is  no  sort  of  necessity  to  discover  language  of  any  par- 
ticular form,  or  writing  of  any  particular  character,  embodying 
the  resolution  of  the  directors.  We  must  treat  the  thing  in  a 
business  way  and  draw  an  inference  of  fact  as  to  what  the  real 
nature  of  the  transaction  was  as  between  business  men.  But 
an  attempt  was  made  to  show  that  the  forbearance  was  worth 
nothing.  Of  course  forbearance  of  a  non-existing  claim  would 
not  be  forbearance  at  all.  We  were  referred  to  the  language  of 
the  Master  of  the  Rolls  in  the  case  of  ex  parte  Banner,'  which 
seems  to  throw  doubt  upon  the  doctrine  which  has  more  than 
once  been  laid  down  in  the  courts  of  common  law,  and  finally 
in  the  well-known  case  of  Callisher  v.  Bischoffsheim.*  It  seems 
to  me  that  if  an  intending  litigant  bond  fide  forbears  a  right  to 
litigate  a  question  of  law  or  fact  which  it  is  not  vexatious  or 
frivolous  to  litigate,  he  does  give  up  something  of  value.  It  is 
a  mistake  to  suppose  it  is  not  an  advantage,  which  a  suitor  is 
capable  of  appreciating,  to  be  able  to  litigate  his  claim,  even  if 
he  turns  out  to  be  wrong.  It  seems  to  me  it  is  equally  a  mis- 
take to  suppose  that  it  is  not  sometimes  a  disadvantage  to  a 
man  to  have  to  defend  an  action  even  if  in  the  end  he  succeeds 
in  his  defence  ;  and  I  think  therefore  that  the  reality  of  the 
claim  which  is  given  up  must  be  measured,  not  by  the  state  of 
the  law  as  it  is  ultimately  discovered  to  be,  but  by  the  state  of 
the  knowledge  of  the  person  who  at  the  time  has  to  judge  and 
make  the  concession.  Otherwise  you  would  have  to  try  the 
whole  cause  to  know  if  the  man  had  a  right  to  compromise  it, 
and  with  regard  to  questions  of  law  it  is  obvious  you  could 
never  safely  compromise  a  question  of  law  at  all.  With  regard 
to  the  observations  of  the  Maste  /  of  the  Rolls  in  ex  parte  Banner 
I  should  like  to  point  out  in  respect  to  Callisher  v.    Bischoff- 

'  2  Dr.  &  Sm.  289.  ^  1-]  Ch.  D.  480. 

'  Idid.  292.  ■*  Law  Rep.  5  Q.  B.  449. 


574  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  [CHAP.  I. 

sheim  in  the  first  place  that  whatever  be  the  objection  taken  to 
the  language  of  the  Court  in  that  case,  in  any  point  of  view  the 
case  was  rightly  decided.  The  plea  there  only  denied  the  ex- 
istence of  the  debt,  and  left  it  on  the  record  undisputed  that  the 
debt  might  have  been  put  forward  reasonably  as  a  substantial 
claim.  But  with  regard  to  the  language  of  the  Court  in  Cal- 
lisher  v.  Bischoffsheim'  I  confess  it  seems  to  me  that  the  lan- 
guage of  Lord  Blackburn  was  correct,  that  the  decision  in 
Ockford  V.  Barelli"  was  right,  and  that  the  language  in  Cook  v. 
Wright'  is  equally  unimpeachable.  When  the  Master  of  the 
Rolls  in  ex  parte  Banner*  says  he  doubts,  if  there  was  really  and 
obviously  no  cause  of  action,  whether  the  belief  of  the  parties 
that  there  was,  would  be  sufficient  ground  for  a  compromise, 
I  agree  if  by  that  he  means  there  must  be  a  real  cause  of  action 
— that  is  to  say,  one  that  is  bond  fide  and  not  frivolous  or  vexa- 
tious ;  but  I  do  not  agree  if  he  means  by  a  real  cause  of  action 
some  cause  of  action  which  commends  itself  to  the  ultimate 
reasoning  of  the  tribunal  which  has  to  consider  and  determine 
the  case. 

In  conclusion  I  only  wish  to  say  I  have  gone  through  the  case 
at  such  great  length  as  I  have  done,  because  I  feel  the  greatest 
possible  reluctance  in  differing  from  my  Brother  Cotton.  I  am 
thankful  to  think  I  am  only  differing  from  him  upon  a  question 
of  fact,  but  as  I  do  differ  and  differ  very  decidedly  upon  it,  it 
seemed  to  me  the  parties  had  a  right  to  expect  I  should  give 
my  reasons  at  full  length  for  so  differing,  and  therefore  my 
observations  have  been  of  greater  length  than  they  would  other- 
wise have  been. 

Fry,  L.J.  There  are  two  questions  which  arise  for  decision 
in  this  case,  one  of  such  being  the  question  which  was  involved 
in  the  previous  case  of  Bradford  Banking  Co.  v.  Briggs  &  Co.* 
North,  J.,  followed  that  case  according  to  its  then  position,  and 
I  think  that  we  are  bound  to  follow  that  case  in  its  present  posi- 
tion, being  a  decision  of  the  Court  of  Appeal.  I  say  that  because, 
although  I  was  party  to  the  decision,  I  did  not  express  either 
dissent  from  or  assent  to  the  larger  propositicn  which  certainly 
governs  this  case.  The  sepond  question  is  the  one  upon  which 
so  much  difference  of  opinion  has  arisen  upon  the  bench. 

Now  it  appears  to  me  that  we  must  consider  in  the  first  place 
what  are  the  allegations  made  by  the  parties  in  this  litigation. 

The  reply  in  the  first  place  alleged  that  no  consideration  was 
given  for  the  guarantee,  and  that  was  met  by  the  rejoinder 
which  stated  with  precision  the  consideration  upon  which  the 

'  Law  Rep.  5  Q.  B.  449.  «2oW.  R.  116.  ^  j  3.  &  S.  559. 

*  17  Ch.  D.  480.  5  31  Ch.  D.  19. 


SEC.  n/.]  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  575 

company  relied.  [His  Lordship  then  read  the  rejoinder  and 
continued.]  Now  it  is  to  be  observed  the  thing  relied  on  is 
the  abandonment  and  giving  up — in  fact,  the  release  of  the 
claims  of  the  company  and  of  the  individual  shareholders.  The 
case  vi^hich  was  made  u^as  not  one  of  a  request  for  forbearance 
for  a  limited  time  or  for  any  stated  time,  follov/ed  by  actual 
forbearance.  In  this  case  we  are  told,  and  no  doubt  accurately, 
that  these  pleadings  were  put  in  after  litigation  as  to  whether 
the  point  should  be  allowed  to  be  raised.  They  were  put  in 
more  than  a  year  after  the  defence  was  put  in,  and  therefore  it 
is  impossible  to  doubt  that  the  statement  in  the  rejoinder  is  the 
well-considered  allegation  of  the  company  as  to  the  considera- 
tion upon  which  they  think  themselves  entitled  to  rely. 

Now  the  next  inquiry  which  arises  is  this,  what  is  the  law 
which  bears  upon  this  question  ;  and  I  am  glad  to  think  that 
whatever  difference  there  may  be  between  us  upon  other  ques- 
tions there  is  no  difference  as  to  the  general  principle  of  law 
applicable  to  this  case.  In  my  opinion  when  a  real  claim  has 
been  made  and  there  is  a  bond  fide  compromise,  that  is  sufficient 
consideration.  I  think  the  law  was  concisely  stated  in  the  case 
of  Cook  V.  Wright,'  when  the  Court,  dealing  with  the  case 
before  them,  said  :  "  The  real  consideration  therefore  depends, '  j 
not  on  the  actual  commencement  of  a  suit,  but  on  the  reality  1 
of  the  claim  made  and  the  bond  fides  of  the  compromise."  I  am 
quite  aware  that  the  Master  of  the  Rolls  has  expressed  certain 
doubts  as  to  whether  there  must  not  be  in  the  mind,  I  suppose 
of  the  Court  which  ultimately  tries  the  question,  a  doubt  as  to 
the  contest  between  the  parties  ;  but  I  cannot  follow  the  learned 
Master  of  the  Rolls  in  that  view.  I  do  not  think  the  policy  of 
the  Courts  is  to  prevent  real  bond  fide  compromises  of  real  and 
bond  fide  claims.  When  there  is  a  pending  action  it  is  easy  to 
suppose  that  the  giving  up  of  that  action  is  the  consideration 
for  the  compromise.  Again,  when  there  is  a  real  cause  of 
action  slight  evidence  of  the  claim  being  made  may  be  admissi- 
ble, and  again,  when  there  is  a  real  belief  in  a  cause  of  action 
on  both  sides  slight  evidence  of  the  claim  being  made  may  go 
in  support  of  the  reality  of  the  claim.  But  in  my  judgment 
none  of  those  circumstances  can  be  laid  down  as  absolutely 
essential  to  the  validity  of  a  compromise.  Of  course  if  neither 
party  believes  in  the  reality  of  the  claim,  it  is  obvious  it  is  a 
sham.  I  do  not  desire  to  say  anything  more  than  that  in  my 
judgment  when  a  real  claim  is  made  and  is  bond  fide  compro- 
mised, that  is  ample  consideration. 

Now  in  the  present  case  was  there  any  real  cause  of  action 
»  ■  B.  &  S.  559.  570. 


576  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  [CHAP.  I. 

or  any  evidence  of  belief  on  the  part  of  the  company  that  there 
was  any  cause  of  action  ?  Or,  again,  was  any  claim  really 
made  against  Mr.  Grant  by  the  company  ?  [His  Lordship  then 
referred  to  the  evidence  on  these  points  and  came  to  the  con- 
clusion that  there  had  been  no  misrepresentation  by  Grant,  no 
real  belief  of  the  company  or  its  officers  of  any  real  cause  of 
action  against  him,  and  no  bond  fide  claim  on  March  15th  pend- 
ing by  the  company  against  Grant.  His  Lordship  then  con- 
tinued.] But  was  there  any  claim  by  a  shareholder  ?  There  is 
not  the  slightest  trace  of  that.  It  is  not  suggested  that  any 
shareholder  had  been  advised  to  make  any  claim,  or,  except 
the  angry  words  that  passed  at  the  meeting,  that  he  had  ever 
asserted  a  claim  ;  and  I  am  bound  to  say  I  do  not  look  upon 
the  angry  words  which  passed  upon  that  occasion  as  anything 
serious,  as  anything  indicating  a  cause  of  action,  or  the  exist- 
ence of  a  belief  of  a  cause  of  action.  But  supposing  there  was 
this  real  claim,  was  there,  to  use  the  language  of  the  pleadings, 
any  agreement  on  the  part  of  the  company  and  the  shareholders 
to  put  an  end  to  the  contemplated  proceedings  and  to  give  up 
their  claim  ?  Now  if  there  was  any  such  agreement  it  is  very 
remarkable  that  the  document  is  absolutely  silent  about  it.  It 
was  suggested  it  would  be  unpleasant  to  Mr.  Grant  to  insert 
words  indicating  that  there  was  any  such  claim,  but  any  such 
sensibility  was  out  of  place  after  the  angry  discussion  which 
had  occurred  ;  and  general  words  might  have  been  inserted 
which  would  not  wound  the  sensibility  of  the  most  sensitive 
man,  and  yet  might  have  the  effect  of  showing  that  the  directors 
intended  to  insist  upon  their  rights.  But  not  only  is  there  no 
mention  of  it  in  the  agreement  itself,  there  is  no  mention  of  it 
in  the  minute  book  which  contains  the  angry  discussion. 
Lastly,  it  seems  to  me  strange  if  the  company  had  intended  to 
give  up  their  claims,  that  no  resolution  was  passed  at  the  meet- 
ing to  express  the  desire  of  the  meeting  that  the  company 
should  give  them  up.  I  think,  therefore,  the  circumstances  of 
the  case  are  very  strong  to  show  that  there  was  no  intention 
whatever  on  the  part  of  the  company  to  abandon  any  claim  they 
might  have.  With  regard  to  the  individual  shareholders,  can 
it  be  said  that  they  by  being  present  at  the  meeting,  some  of 
them  silent,  not  taking  part  in  the  discussion,  were  giving  up 
their  individual  causes  of  action,  supposing  they  existed  ?  And 
observe,  giving  them  up  while  the  shareholders  who  were  not 
at  the  meeting  would  retain  their  causes  of  action,  if  they  had 
any.  How  can  it  be  said  therefore  that  there  was  any  agree- 
ment to  give  up  the  claims  of  all  the  shareholders  for  whose 
benefit  the  agreement  was  entered  into  ?     It  seems  to  me  that 


SEC.  II/.]  MILES  V.  NEW  ZEALAND  ALFORD  ESTATE  CO.  577 

there  is  strong  evidence  to  show  that  there  was  no  intention  on 
the  part  of  the  shareholders  to  give  up  their  rights.  Therefore, 
looking  at  tlie  circumstances  of  the  case  it  appeals  to  me  im- 
possible to  conclude  that  the  shareholders  intended  to  give  up 
anything,  or  that  the  company  intended  to  give  up  anytliing. 
But  then  it  is  said  that  Mr.  Redmayne's  affidavit  is  precise,  and 
that  as  Mr.  Redmayne  was  not  cross-examined  it  is  impos- 
sible for  this  Court  to  come  to  a  conclusion  different  from 
that  of  North,  J.  Now  I  confess  that  has  been  to  my  mind  the 
principal  question  of  difficulty  in  this  case,  and  I  should  have 
been  better  pleased  if  Mr.  Redmayne  had  been  cross-examined. 
At  the  same  time  it  must  be  borne  in  mind  that  the  onus  of 
proof  is  on  those  who  make  an  assertion.  I  do  not  impute  bad 
faith  to  Mr.  Redmayne,  but  his  statements  are  not  literally 
accurate.  [His  Lordship  then  referred  to  this  affidavit,  and 
<:ame  to  the  conclusion  that  it  did  not  contain  statements  of  fact 
sufficient  to  support  the  contention  that  has  been  made.  He 
then  continued.] 

Now  another  difficulty  which  must  be  referred  to  is  this,  that 
the  abandonment  of  claims  mentioned  in  the  affidavit  by  the 
company  is  their  abandonment,  if  any  such  there  was,  by  an 
incorporated  society,  a  body  whose  proceedings  are  regulated 
by  the  requirements  of  the  Companies  Act,  and  who  must  pro- 
ceed with  a  certain  amount  of  regularity  and  formality.  It  is 
to  be  observed,  as  I  have  already  said,  there  is  no  document  on 
the  part  of  the  company  indicating  any  intention  to  give  up 
their  claim.  There  appears  to  have  been  no  resolution  of  the 
directors  to  give  it  up,  there  is  no  discussion  as  to  whether  they 
shall  give  it  up,  there  is  no  resolution  at  the  meeting  of  March 
15th  as  to  whether  they  shall  give  it  up  ;  and  that  to  my  mind 
is  strong  to  show  that  there  was  no  intention  to  give  it  up.  I 
think,  therefore,  it  is  impossible  that  the  company  can  be  bound 
by  such  an  irregular  discussion  as  seems  to  have  taken  place  on 
March  15th.  Lastly,  it  has  been  urged  upon  us  that  the  con- 
duct of  both  the  parties  showed  they  thought  that  the  consider- 
ation was  sufficient.  It  is  said  that  Mr.  Grant  treated  his  un- 
dertaking as  serious.  If  he  was  a  man  of  honor  he  would  have 
treated  it  seriously  ;  in  all  probability  if  his  affairs  had  not  gone 
into  liquidation  he  intended  to  honor,  and  would  have  honored 
that  undertaking,  which,  whatever  its  legal  force,  was  binding 
upon  him  in  honor.  I  think  the  true  result  of  the  evidence  is 
to  show  that  there  was  an  expectation  in  the  mind  of  Mr.  Grant 
that  if  he  gave  this  document  no  proceedings  would  be  taken 
against  him,  that  there  was  an  expectation  in  the  minds  of  many 
of  those  who  were  present,  if  they  got  this  dividend  they  would 


578  CREARS   V.    HUNTER.  [cHAP.  I. 

take  no  proceedings  ;  but  it  appears  to  me  it  is  not  right  or 
competent  for  the  Court  to  turn  an  expectation  into  a  contract, 
and  that  is  what  I  think  we  should  do  if  we  gave  effect  to  this 
as  a  valid  contract. 

The  result  is  the  majority  of  the  Court,  while  differing  from 
the  judge  on  both  the  points,  affirms  the  decree. 

Their  Lordships  then  made  a  declaration  that  the  plaintiff 
was  entitled  to  a  charge  upon  the  shares  of  Grant,  free  from 
any  claim  by  the  defendant  company  under  the  letter  of  guar- 
antee of  March  15th,  1883,  and  dismissed  the  appeal  with  costs. 


CREARS  V.   HUNTER. 

In  the  Court  of  Appeal,  July  12,  1887. 
[Reported  in  Law  Reports,  19  Queen's  Bench  Division,  341.] 

Appeal  from  the  order  of  the  Queen's  Bench  Division  (Day 
and  Wills,  JJ.)  setting  aside  the  verdict  and  judgment  for  the 
plaintiff  at  the  trial. 

The  facts  in  substance  appeared  to  be  as  follows  : 

The  action  was  on  a  promissory  note,  the  defence  being  that 
there  was  no  consideration  for  the  making  of  the  note  by  the 
defendant. 

The  defendant's  father,'  since  deceased,  had,  before  the  de- 
fendant came  of  age,  borrowed  the  sum  of  ;^2oo  from  the  plain- 
tiff, promising  that  his  son,  the  defendant,  when  of  age,  would 
become  surety  for  the  debt.  In  1877,  the  defendant  being  then 
of  age,  the  plaintiff  brought  a  promissory  note  stamp  to  the 
defendant's  father's  house,  where  the  defendant  then  was,  and 
the  promissory  note  now  sued  upon  was  then  drawn  up  and 
signed  by  the  defendant's  father  and  the  defendant.  By  such 
note  they  jointly  and  severally  promised  to  pay  to  the  plaintiff 
or  order  "  the  sum  of  ;^2oo,  being  money  lent,  with  interest  on 
the  same  from  Martinmas  last  past  half-yearly  at  the  rate  of 
5  per  cent  per  annum."  There  was  no  evidence  as  to  anything 
being  said  by  the  parties  in  relation  to  the  signing  of  the  note. 
Interest  had  been  paid  upon  the  note.  It  appeared  that  on  sev- 
eral occasions  such  interest  was  paid  in  the  defendant's  pres- 
ence, and  the  receipts  for  such  payments  of  interest  were  made 
out  to  the  defendant's  father  and  the  defendant  jointly.     The 

•  The  executor  of  the  father  was  joined  as  a  defendant  in  the  action,  but 
had  put  in  no  defence  ;  and  for  convenience'  sake  the  son  is  referred  to 
throughout  the  report  as  if  he  had  been  the  sole  defendant. 


SEC.  11/.]  CREAKS   V.    HUNTER.  579 

principal  being  still  due,  the  plaintiff  brought  his  action  on  the 
note  against  the  defendant  Hunter  and  his  father's  executor. 

The  learned  judge  at  the  trial,  A.  L.  Smith,  J.,  appeared,  in 
substance,  to  have  told  the  jury  that,  if  the  note  was  signed  by 
the  defendant  in  order  that  the  plaintiff  might  give  time  to  his 
father,  and  the  plaintiff  did  give  time,  there  would  be  a  good 
consideration  for  the  making  of  the  note  by  the  defendant,  and 
he  left  it  to  the  jury  to  say  whether  there  was  such  consider- 
ation. 

The  jury  found  for  the  plaintiff. 

The  Divisional  Court  set  aside  the  verdict  on  the  ground 
that  theie  was  no  evidence  of  consideration,  and  entered  judg- 
ment for  tne  defendant. 

French,  Q C,  and  Mattinson  for  the  plaintiff. 

Gully,  Q.C.^  and  Henry  for  the  defendant. 

Lord  Esher,  M.R.  In  this  case  the  defendant's  father  had 
borrowed  money  of  the  plaintiff,  and  was  actually  liable  to  pay 
the  amount  so  borrowed.  The  plaintiff  purchased  a  promissory 
note  stamp  and  went  with  it  to  the  house  of  the  defendant's 
father,  and  there  found  the  defendant's  father,  and  the  defend- 
ant, who  was  at  that  dime  under  no  obligation  whatever  to  the 
plaintiff.  A  promissory  note  was  drawn  up,  which  does  not,  it 
is  true,  on  the  face  of  it  provide  for  any  delay  in  payment  of 
the  amount  due  by  the  father,  because  the  father's  liability  on 
the  note  arose  immediately  after  it  was  signed,  if  the  plaintiff 
had  chosen  to  sue  on  it.  The  note  does  nevertheless  indicate 
on  the  face  of  it  that,  though  there  was  no  binding  agreement 
to  forbear,  the  parties  did  contemplate  that  the  note  might  not 
be  sued  on  .for  some  time,  because  provision  is  made  for  the 
payment  of  interest  half-yearly  by  the  son  jointly  with  the 
father.  It  may  be  true  that  there  was  no  evidence  of  any  re- 
quest in  express  terms  by  the  son  that  the  plaintiff  would  for- 
bear to  sue  the  father,  but  what  was  the  substance  of  the  trans- 
action contemplated  in  the  minds  of  the  parties  ?  Was  not  the 
understanding  obviously  that,  if  the  plaintiff  would  forbear  to 
sue  the  father,  the  defendant  would  become  liable  on  the  note  ? 
I  take  it  to  be  undoubted  law  that  the  mere  fact  of  forbearance 
would  not  be  a  consideration  for  a  person's  becoming  surety 
for  a  debt.  It  is  quite  clear,  on  the  other  hand,  that  a  binding 
promise  to  forbear  would  be  a  good  consideration  for  a  guar- 
antee. The  question  is  whether,  if  the  guarantor  requests  the 
creditor  to  forbear  from  suing  and  the  creditor  on  such  request, 
although  he  does  not  at  the  time  bind  himself  to  forbear,  does 
in  fact  afterward  forbear  to  sue,  there  is  a  good  consideration 
for  the  guarantee.     It   seems   to   me   that  it  was  laid  down  in 


580  CREARS   V.    HUNTER.  [CHAP.  I. 

Oldershavv  v.  King*  that  there  would  in  such  a  case  be  a  good 
consideration,  and  I  do  not  think  that  any  of  the  cases  cited  to 
us  is  really  to  the  contrary.  Erie,  J.,  there  said  :  "  Looking 
at  the  whole  letter  and  the  circumstances  under  which  it  was 
written,  and  considering  the  importance  of  further  advances, 
I  come  to  the  conclusion  that  the  consideration  contemplated 
was  that  further  advances  should  be  made  and  time  given  by 
the  creditor  before  he  would  press  for  payment  of  the  existing 
debt.  Though  the  contract  did  not  bind  the  creditor  to  make 
further  advances  or  to  give  time,  unless  he  chose  to  do  so,  it  is 
clear  that,  if  he  did  make  the  advances  and  did  give  time,  that 
which  was  contingent  at  the  time  when  the  instrument  was 
written  became  an  absolute  and  binding  contract."  It  clearly 
follows  from  what  he  there  says  that,  if  at  the  request  of  the 
guarantor  the  creditor  does  in  fact  forbear,  there  is  a  sufficient 
consideration  to  bind  the  guarantor,  who  has  promised  to  pay 
the  debt.  It  was  argued  that  the  request  to  forbear  must  be 
express.  But  it  seems  to  me  that  the  question  whether  the  re- 
quest is  express  or  is  to  be  inferred  from  the  circumstances  is  a 
mere  question  of  evidence.  If  a  request  is  to  be  implied  from 
the  circumstances,  it  is  the  same  as  if  there  were  an  express  re- 
quest. The  question  is,  therefore,  whether  there  was  sufficient 
evidence  in  this  case  to  entitle  the  jury  to  infer  that  the  under- 
standing between  the  plaintiff  and  defendant  was  that,  if  the 
plaintiff  would  give  time  to  the  father,  the  defendant  would 
make  himself  responsible.  I  am  of  opinion  that  there  was  evi- 
dence to  go  to  the  jury  that  what  the  parties  really  understood 
in  their  minds  was  that,  if  the  plaintiff  would  give  the  defend- 
ant's father  time  to  turn  round,  the  defendant  would  guarantee 
the  payment  of  the  principal  in  the  end  and  in  the  mean  time 
interest  at  the  rate  of  5  per  cent  per  annum  half-yearly.  I  not 
only  think  that  there  was  evidence  of  such  an  understanding, 
but  I  entirely  agree  with  the  inference  drawn  by  the  jury.  I 
cannot  see  any  other  reasonable  explanation  of  the  transaction 
than  that  the  understanding  was  as  I  have  said.  For  these 
reasons  I  think  that  the  verdict  and  judgment  at  the  trial  were 
right,  and  that  the  decision  of  the  Divisional  Court  must  be 
reversed. 

LiNDLEV,  L.J.  I  am  of  the  same  opinion.  In  this  case  the 
plaintiff  obtained  a  verdict  in  an  action  on  a  promissory  note, 
the  question  left  to  the  jury  being  whether  there  was  any  con- 
sideration for  the  defendant's  giving  the  note.  The  Divisional 
Court  have  set  aside  the  verdict  and  entered  judgment  for  the 
defendant  on  the  ground  that  there  was  no  evidence  of  any  con- 
'  2  H.  &  N.  399,  517. 


SKC.  II/.]  CREAKS   V.    HUxNTER.  581^ 

sideration.  We  therefore  have  to  consider  whether  there  was 
any  evidence  of  a  good  consideration  for  the  signature  of  the 
note  by  the  defendant.  Looking  at  the  document  and  the  his- 
tory of  the  transaction,  I  cannot  invent  any  rational  tlieory  by 
which  to  account  for  the  defendant's  giving  the  note  except 
that  it  was  for  the  purpose  of  benefiting  his  father  by  procuring 
for  liim  time  to  pay  the  debt.  To  say  otherwise  appears  to  me 
inconsistent  with  human  nature  and  the  whole  character  of  the 
transaction.  It  may  be  that  there  is  no  evidence  that  the  de- 
fendant actually  said  that  he  would  be  liable,  if  the  plaintiff 
would  give  his  father  time.  But,  except  on  the  theory  that 
such  was  the  understanding  between  the  parties,  the  defend- 
ant's conduct  is  inexplicable.  I  cannot  think  that  there  was 
no  evidence  for  the  jury  that  there  was  forbearance  by  the 
plaintiff  at  the  request  of  the  defendant.  On  the  contrary,  the 
evidence  to  the  effect  that  there  was  seems  to  me  overwhelm- 
ing. Then  the  question  arises  whether  that  would  constitute  a 
sufficient  consideration.  Upon  looking  into  the  authorities  it 
seems  to  me  to  be  the  result  of  other  cases  besides  Oldershaw  v. 
King'  and  Mills  v.  New  Zealand  Alford  Estate  Company,^  that  it 
is  not  essential  that  the  plaintiff  should  have  agreed  to  forbear  ; 
it  is  quite  sufficient  if  he  did  forbear  at  the  request  of  the  de- 
fendant. It  is  argued  that  in  thus  deciding  we  contravene  the 
decision  in  the  case  of  Crofts  v.  Beale.^  But  I  do  not  so  read 
that  case.  There  the  question  was  left  to  the  jury  whether 
tliere  was  consideration  or  not,  the  judge  having  told  them 
that,  if  the  note  was  given  to  prevent  legal  proceedings  against 
the  principal  debtor,  there  was  sufficient  consideration  for  it. 
The  jury  found  for  the  defendant — /.<?.,  that  there  had  been  no 
request  and  no  consideration.  In  this  case  the  jury  found  that 
there  was  consideration. 

Lopes,  L.J.  In  this  case  the  question  is  whether  there  was 
evidence  of  a  consideration  for  the  making  of  this  note  by  the 
defendant.  The  law  appears  to  be  that  a  promise  to  forbear  is 
a  good  consideration,  but  also  that  actual  forbearance  at  the 
request,  express  or  implied,  of  the  defendant  would  be  a  good 
consideration.  Taking  the  latter  of  these  two  alternatives,  it  is 
undisputed  that  there  was  actual  forbearance  from  suing  in  this 
case.  That  by  itself  would  not  be  sufficient  ;  such  forbearance 
must  have  been  at  the  request,  express  or  implied,  of  the  de- 
fendant. There  is  no  evidence  here  of  any  express  request.  It 
seems,  however,  clear  that  there  is  evidence  of  an  implied  re- 
quest, and  I  think  the  jury  were  justified  in  finding  that  there 
was  such  a  request.  Unless  it  were  to  procure  forbearance,  it 
'2H.  &N.,5i7.  2  32  Ch.  D.  26G  •"•  II  C.  B    172. 


582  traders'   NAT.   BANK  V.   PARKER.  [CHAP.  I. 

is  inconceivable  why  the  defendant  should  have  signed  the  note 
at  all.  The  case  is  strengthened  when  it  is  borne  in  mind  that 
the  note  provides  for  the  payment  of  interest  half-yearly  by  the 
father  and  son  jointly,  thus  clearly  indicating  to  my  mind  that 
forbearance  was  contemplated  at  the  request  of  the  son.  For 
these  reasons  I  think  the  judgment  of  the  Court  below  should 
be  reversed. 

Appeal  allowed. 


THE    TRADERS'    NATIONAL    BANK,    of    San    Antonio, 

Texas,  Respondent,  v.  CHARLES   T.  PARKER, 

Appellant. 

In  the  Court  of  Appeals  of  New  York,  January  20,  1892. 
[Reported  m  130  New  York  Reports  415.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  upon  an  order 
made  January  24th,  1890,  which  affirmed  a  judgment  in  favor 
of  plaintiff  entered  upon  the  report  of  a  referee. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion. 

David  Wilcox  for  appellant. 

John  Lindley  for  respondent. 

Brown,  J.  On  or  about  February  nth,  1884,  the  plaintiff 
was  the  owner  and  holder  of  an  overdue  promissory  note  for 
$10,265.65,  made  by  one  J.  P.  Hodgson  and  one  F.  W.  James, 
and  was  insisting  upon  the  payment  thereof  and  threatening  to 
bring  suit  thereon  against  the  makers.  The  defendant  there- 
upon, with  a  view  to  obtain  an  extension  of  time  for  the  pay- 
ment of  said  note,  affixed  his  signature  thereto  under  the  signa- 
tures of  Hodgson  and  James.' 

This  action  is  upon  the  contract  thus  made,  and  the  defence 
relied  upon  in  this  Court  to  defeat  a  recovery  is  that  no  consid- 
eration for  the  defendant's  contract  was  shown. 

The  referee  found  that  the  consideration  consisted  in  the 
plaintiff's  agreement  to  extend  the  time  of  payment  of  said 
note,  and  to  delay  proceedings  for  the  collection  thereof,  but 
that  it  did  not  state  or  agree  to  extend  for  any  definite  period 
of  time  ;  and  upon  defendant's  request  he  further  found  that 
"  when  the  defendant  signed  the  note  in  suit  plaintiff  did  not 
waive  its  right  to  sue  Hodgson  and  James,  or  either  of  them, 
upon  the  same  whenever  it  saw  fit." 

*  See  supra,  p.  i,  note  i. — Ed. 


SEC.  II/.]  traders'    NAT.    BANK    V.    PARKER.  583 

If  the  latter  conclusion  is  to  be  treated  as  one  of  fact,  it  is 
clearly  in  <  onflict  with  the  other  findings,  as  an  agreement  to 
extend  the  time  of  payment,  which  did  not  bind  the  plaintiff  to 
withhold  suit  for  some  time,  would  be  no  agreement  at  all,  and 
the  defendant  would  be  entitled  to  the  benefit  of  the  rule  that 
'when  findings  are  so  inconsistent  that  they  cannot  be  reconciled, 
those  which  are  most  favorable  to  the  appellant  are  controlling 
upon  the  Appellate  Court.  (Redfield  v.  Redfield,  no  N.  Y. 
671  ;  Wahl  V.  Barnum,  116  N.  Y.  87-99.) 

But  it  is  the  duty  of  the  Court,  if  possible,  to  reconcile  these 
findings.  It  is  only  when  this  cannot,  by  reasonable  construc- 
tion, be  accomplished,  that  it  is  bound  to  accept  the  finding 
most  favorable  to  the  appellant.  (Green  v.  Roworth,  113  N.  Y. 
462.) 

The  findings  of  the  referee,  taken  together,  are  to  the  effect 
that  while  the  plaintiff  was  to  delay  proceedings  for  collection 
of  the  note,  and  the  defendant  put  his  signature  to  it  in  con- 
sideration of  the  agreement  of  the  plaintiff  to  give  the  makers 
further  time  upon  the  note,  the  plaintiff  did  not  state  or  agree 
that  it  would  extend  for  any  definite  time,  nor  did  it  waive  its 
right  to  sue  the  makers,  Hodgson  and  James,  or  either  of  them, 
upon  the  note  whenever  it  saw  fit.  The  latter  findings  were 
pursuant  to  request  of  the  defendant,  and  the  last  one  seems  to 
import  the  effect  of  the  former  as  the  referee  understood  it.  In 
that  view  the  others  represent  the  agreement  as  made  between 
the  parties,  and  the  last  one  without  qualification  of  their  terms 
embraces  what  the  referee  seems  to  treat  as  the  interpretation 
to  w^hich  in  his  view  they  were  entitled.  While  this  does  not 
seem  quite  consistent  with  the  conclusion  of  law  reached  by  the 
referee,  it  is  not  necessarily  inconsistent  with  the  agreement 
between  the  parties  as  found  by  him.  And,  therefore,  does  not 
control  the  construction  and  effect  to  be  given  to  those  findings 
in  support  of  the  judgment. 

While  all  the  evidence  taken  upon  the  trial  is  not  before  us, 
there  is  a  certificate  in  the  record  that  the  "  case  contains  so 
much  of  the  evidence  as  is  material  to  the  questions  to  be 
raised,"  and  we  may  presume,  therefore,  that  all  the  evidence 
bearing  upon  the  question  of  consideration  is  in  the  case.  Re- 
ferring to  the  testimony,  we  find  that  the  defendant  was  a  cred- 
itor of  Hodgson,  one  of  the  makers  of  the  note.  Hodgson  was 
embarrassed  financially,  and  other  creditors  were  pressing  their 
claims  against  him.  He  was  the  owner  of  a  herd  of  13,000 
sheep  which  were  about  to  be  sold  at  Colorado  City,  under  a 
chattel  mortgage.  The  defendant  desired  to  purchase  the  sheep 
at  the  sale,  and  wanted  to  borrow  the  money  from  the  plaintiff 


584  traders'    NAT.    BANK   V.    PARKER.  [CHAP.  I, 

to  enable  him  to  do  so,  and  to  have  the  proceedings  for  the  col- 
lection of  the  note  withheld.  With  this  object  in  view  he  vis- 
ited the  plaintiff  at  San  Antonio  with  James,  the  joint  maker  of 
the  note.  The  plaintiff  refused  to  make  the  desired  loan,  but 
it  offered  to  extend  the  time  for  the  payment  of  its  note  if  the 
defendant  would  sign  it. 

Mr.  Brownson,  the  president  of  the  plaintiff  bank,  testified 
that  he  agreed  to  withhold  suit  on  the  note  and  extend  the  time 
of  payment.  Asked  as  to  the  time  of  the  extension  he  said:  "  I 
don't  think  any  definite  time  was  agreed  upon  ;  it  was  to  de- 
pend very  much  upon  the  movements  of  the  other  creditors  of 
Hodgson.  The  proceedings  at  Colorado  City  were  to  cut  some 
figure  in  what  we  were  to  do  ;  it  was  left  somewhat  to  the 
wishes  of  Mr.  Parker." 

And  it  appeared  that  Parker  thought  that  something  on  the 
plaintiff's  debt  might  be  realized  out  of  the  sale  of  the  sheep, 
and  that  he  was  to  go  to  Colorado  City,  which  was  about  eigh- 
teen hours'  ride  by  railroad  from  San  Antonio,  and  attend  the 
sale,  and  that  it  was  contemplated  by  the  parties  that  he  should 
advise  the  plaintiff  from  that  place,  and  that  he  did  so,  and  that 
Mr.  Brownson  went  there  at  his  request,  but  he  refused  to 
advance  money  to  buy  the  sheep. 

Mr.  Thornton,  the  cashier  of  the  bank,  testified  that  they 
were  pressing  Hodgson  for  a  settlement,  and  threatened  him 
with  suit.  That  it  was  about  term  time  of  the  Court,  and  they 
had  threatened  to  put  the  paper  through  at  that  term,  .  .  .  and 
the  proposition  was  made  that  if  the  bank  was  satisfied  on  the 
paper  it  would  withhold  suit.  It  thus  appears  that  nothing  was 
said  about  the  right  of  the  plaintiff  to  sue  whenever  it  saw  fit, 
and  the  conclusion  of  the  referee  that  the  plaintiff  did  not  waive 
its  rights  is  an  inference  from  the  evidence,  and  was  not  an  ex- 
isting or  independent  fact  itself,  and,  as  was  said  in  Green  v. 
Roworth  {supra),  "  it  was  in  that  respect  rather  a  finding  upon 
a  question  of  law  than  one  of  fact."  It  certainly  was  the  in- 
tention and  agreement  of  the  parties  that  sufficient  time  should 
be  allowed  by  the  bank  during  which  the  defendant  could  go 
to  Colorado  City  and  examine  into  the  condition  of  Hodgson's 
affairs  there,  so  that  he  might  judge  of  the  possibility  of  realiz- 
ing something  out  of  the  sale  of  the  sheep  that  could  be  applied 
to  the  payment  of  the  plaintiff's  note,  and  this  was  a  matter  of 
considerable  importance  and  benefit  to  him.  And  it  is  clear, 
I  think,  that  suit  was  to  be  withheld  upon  the  note  until  after 
the  sale  at  Colorado  City,  and  whether  further  extension  should 
be  given  was  to  depend  somewhat  upon  the  defendant's  wishes 
in  the  matter. 


SEC.  II/.]  traders'    NAT.    P.AXK    7'.    PARKKR.  585 

The  period  during  wliich  suit  was  to  be  withheld  was  not 
fixed  at  any  certain  number  of  days,  weeks  or  months,  but  it 
does  not  follow  that  the  plaintiff  did  not  waive  its  right  to  sue 
immediately  on  the  note,  and  the  evidence  leaves  no  doubt  that 
it  did  waive  such  right  until  the  defendant  could  go  to  Colorado 
City,  and  there  make  such  examination  as  he  desired  and  com- 
municate the  result  to  the  plaintiff,  and  any  prosecution  upon 
the  note  during  that  time  would  have  been  a  plain  violation  of 
plaintiff's  agreement.  Treating  the  finding  I  have  quoted  as 
an  inference  from  the  facts  proven,  and  not  as  a  distinct  fact  of 
itself,  \ve  have  no  difficulty  in  affirming  the  judgment  upon  the 
facts  found  by  the  referee. 

The  appellant  contends  that  because  the  plaintiff  did  not 
agree  to  extend  the  time  of  payment  for  a  definite  period,  there 
was  no  consideration  for  defendant's  contract,  and  he  cites 
Atlantic  Nat.  Bank  v.  Franklin  (55  N.  Y.  235)  and  Perkins  v. 
Proud  (62  Barb.  420)  as  authorities  for  that  contention. 

In  the  Atlantic  Bank  Case  there  was  no  agreement  not  to  sue. 
The  evidence  showed  indulgence  merely.  In  Perkins  v.  Proud, 
the  Court  said,  to  make  forbearance  a  valid  consideration,  there 
must  be  a  binding  agreement  to  forbear  either  for  a  definite 
time  or  for  a  reasonable  time. 

Neither  of  these  cases  support  the  appellant's  claim.  On  the 
contrary,  the  whole  current  of  authority  is  to  the  effect  that  an 
agreement  to  withhold  suit  is  a  good  consideration  to  support 
a  promise  to  pay  a  debt,  although  no  fixed  and  definite  time  is 
expressly  agreed  upon.  (Rolles  Abgt.  27,  pi.  45  ;  Brandt  on 
Suretyship  and  Guaranty,  §  8  ;  i  Parsons  on  Contracts  [6th  ed.], 
p.  444  ;  Walker  v.  Sherman,  11  Mete.  170-172  ;  Mecorney  v. 
Stanley,  8  Cush.  85-88  ;  Hakes  v.  Hotchkiss,  23  Vt.  231  ;  Cal- 
kins V.  Chandler,  36  Mich.  320  ;  Lonsdale  v.  Brown,  4  Wash. 
148  ;  Downing  v.  Funk,  5  Rawle,  69  ;  Sidwell  v.  Evans,  i  Penn. 
383  ;  King  v.  Upton,  4  Me.  387  ;  Kiting  v.  Vanderlyn,  4  Johns. 
237  ;  Watson  v.  Jlandall,  20  Wend.  201  ;  Mut.  Life  Ins.  Co.  v. 
Smith,  23  Hun,  535.) 

The  legal  effect  of  such  an  agreement  is  to  bind  tiie  creditor 
to  withhold  suit  for  a  reasonable  time.  What  would  be  a 
reasonable  time,  if  not  always  a  question  of  fact,  would  at  least 
be  a  mixed  question  of  law  and  fact,  depending  for  its  solution 
upon  the  circumstances  of  each  case. 

The  precise  question  at  issue  here  was  decided  in  this  state 
in  Kiting  v.  Vanderlyn  {supra).  There  the  judgment  was 
attacked  on  the  ground  that  the  promise  to  pay  was  in  consid- 
eration of  an  indefinite  forbearance,  and  was  void.  The  Court 
said  :   "  The  consideration  of  forbearance  generally  is  sufficient 


586  STRONG   V.    SHEFFIELD.  [cHAP.  I. 

without  setting  forth  a  specific  time.  There  was  in  fact  a  total 
forbearance  for  a  long  time,  which  brings  the  case  within  that 
of  Mapes  v.  Sidney  (Cro.  Jac.  283)."  This  case  has  never  been 
questioned  or  overruled. 

In  the  case  before  us  there  was  total  forbearance,  as  no  suit 
was  ever  brought  against  Hodgson  or  James  on  the  note. 

The  general  rule  is  that  the  waiver  of  any  legal  right,  at  the 
request  of  another  party,  is  a  sufficient  consideration  to  uphold 
a  promise. 

There  was  clearly  such  a  waiver  shown  in  this  case,  and  the 
referee  having  found  an  express  agreement  to  that  effect,  judg- 
ment in  the  plaintiff's  favor  necessarily  followed. 

The  judgment  should  be  affirmed. 

All  concur,  except  Follett,  C.J.,  and  Vann,  J.,  dissenting. 

Judgment  affirmed. 


BENJAMIN    B.  STRONG,  Appellant,  v.  LOUISA   A. 
SHEFFIELD,  Respondent. 

In  the  Court  of  Appeals  of  New  York,  January  15,   1895. 
[Reported  in  144  New  York  Reports  392. J 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  second  judicial  department,  entered  upon  an  order 
made  December  12th,  1892,  which  reversed  a  judgment  in  favor 
of  defendant,  entered  upon  a  verdict,  and  also  affirmed  an  order 
denying  a  motion  for  a  new  trial. 

This  was  an  action  upon  a  promissory  note. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Cortielius  E.  Kene  for  appellant. 

Martin  J.  Keogh  for  respondent. 

Andrews,  C.J.  The  contract  between  a  maker  or  endorser 
of  a  promissory  note  and  the  payee  forms  no  exception  to  the 
general  rule  that  a  promise,  not  supported  by  a  consideration, 
is  nudum pactu7n.  The  law  governing  commercial  paper  which 
precludes  an  inquiry  into  the  consideration  as  against  bond  fide 
holders  for  value  before  maturity,  has  no  application  where  the 
suit  is  between  the  original  parties  to  the  instrument.  It  is  un- 
disputed that  the  demand  note  upon  which  the  action  was 
brought  was  made  by  the  husband  of  the  defendant  and  en- 
dorsed by  her  at  his  request  and  delivered  to  the  plaintiff,  the 
payee,  as  security  for  an  antecedent  debt  owing  by  the  husband 
to  the  plaintiff.     The  debt  of  the  husband  was  past  due  at  the 


SEC.  II/.]  STRONG   V.    SHEFFIELD.  587 

time,  and  the  only  consideration  for  the  wife's  endorsement, 
which  is  or  can  be  claimed,  is  that  as  part  of  the  transaction 
there  was  an  agreement  by  the  plaintiff  when  the  note  was 
given  to  forbear  the  collection  of  the  debt,  or  a  request  for  for- 
bearance, which  was  followed  by  forbearance  for  a  period  of 
about  two  years  subsequent  to  the  giving  of  the  note.  There 
is  no  doubt  that  an  agreement  by  the  creditor  to  forbear  the 
collection  of  a  debt  presently  due  is  a  good  consideration  for 
an  absolute  or  conditional  promise  of  a  third  person  to  pay  the 
debt,  or  for  any  obligation  he  may  assume  in  respect  thereto. 
Nor  is  it  essential  that  the  creditor  should  bind  himself  at  the 
time  to  forbear  collection  or  to  give  time.  If  he  is  requested 
by  his  debtor  to  extend  the  time,  and  a  third  person  undertakes 
in  consideration  of  forbearance  being  given  to  become  liable  as 
surety  or  otherwise,  and  the  creditor  does  in  fact  forbear  in 
reliance  upon  the  undertaking,  although  he  enters  into  no  en- 
forcible  agreement  to  do  so,  his  acquiescence  in  the  request, 
and  an  actual  forbearance  in  consequence  thereof  for  a  reason- 
able time,  furnishes  a  good  consideration  for  the  collateral  un- 
dertaking. In  other  words,  a  request  followed  by  performance 
is  sufficient,  and  mutual  promises  at  the  time  are  not  essential, 
unless  it  was  the  understanding  that  the  promisor  was  not  to 
be  bound,  except  on  condition  that  the  other  party  entered  into 
an  immediate  and  reciprocal  obligation  to  do  the  thing  re- 
quested. (Morton  v.  Burn,  7  A.  &  E.  19  ;  Wilby  e^  Elgee,  L.  R., 
10  C.  P.  497  ;  King  v.  Upton,  4  Maine,  387  ;  Leake  on  Con., 
p.  54  ;  Am.  Lead  Cas.,  Vol.  II.,  p.  96  et  seq.  and  cases  cited.) 
The  general  rule  is  clearly,  and  in  the  main  accurately,  stated 
in  the  note  to  Forth  v.  Stanton  (i  Saund.  210,  note  3).  The 
learned  reporter  says  :  **  And  in  all  cases  of  forbearance  to  sue, 
such  forbearance  must  be  either  absolute  or  for  a  definite  time, 
or  for  a  reasonable  time  ;  forbearance  for  a  little,  or  for  some 
time,  is  not  sufficient."  The  only  qualification  to  be  made  is 
that  in  the  absence  of  a  specified  time  a  reasonable  time  is  held 
to  be  intended.  (Oldershaw  v.  King,  2  H.  &  N.  517  ;  Calkins  Z'. 
Chandler,  2>^  Mich.  320.)  The  note  in  question  did  not  in  law 
extend  the  payment  of  the  debt.  It  was  payable  on  demand, 
and  although  being  payable  with  interest  it  was  in  form  con- 
sistent with  an  intention  that  payment  should  not  be  immedi- 
ately demanded,  yet  there  was  nothing  on  its  face  to  prevent  an 
immediate  suit  on  the  note  against  the  maker  or  to  recover  the 
original  debt.  (Merritt  v.  Todd,  23  N,  Y.  28  ;  Shutts  v.  Fingar, 
100  N.  Y.  539.) 

In  the  present  case  the  agreement  made  is  not  left  to  infer- 
ence, nor  was  it  a  case  of  request  to  forbear,  followed  by  for- 


egg  HUNT   V.    BATE.  [CHAP.  I. 

bearance,  in  pursuance  of  the  request,  without  any  promise  on 
the  part  of  the  creditor  at  the  time.  The  plaintiff  testified  that 
there  was  an  express  agreement  on  his  part  to  the  effect  that 
he  would  not  pay  the  note  away,  nor  put  it  in  any  bank  for  col- 
lection, but  (using  the  words  of  the  plaintiff)  "  I  will  hold  it 
until  such  time  as  I  want  my  money,  I  will  make  a  demand  on 
you  for  it."  And  again  :  "  No,  I  will  keep  it  until  such  time 
as  I  want  it."  Upon  this  alleged  agreement  the  defendant  en- 
dorsed the  note.  It  would  have  been  no  violation  of  the  plain- 
tifif's  promise  if,  immediately  on  receiving  the  note,  he  had  com- 
menced suit  upon  it.  Such  a  suit  would  have  been  an  assertion 
that  he  wanted  the  money  and  would  have  fulfilled  the  condition 
of  forbearance.  The  debtor  and  the  defendant,  when  they 
became  parties  to  the  note,  may  have  had  the  hope  or  expecta- 
tion that  forbearance  would  follow,  and  there  was  forbearance 
in  fact.  But  there  was  no  agreement  to  forbear  for  a  fixed  time 
or  for  a  reasonable  time,  but  an  agreement  to  forbear  for  such 
time  as  the  plaintiff  should  elect.  The  consideration  is  to  be 
tested  by  the  agreement,  and  not  by  what  was  done  under  it. 
It  was  a  case  of  mutual  promises,  and  so  intended.  We  think 
the  evidence  failed  to  disclose  any  consideration  for  the  defend- 
ant's endorsement,  and  that  the  trial  Court  erred  in  refusing 
so  to  rule. 

The  order  of  the  General  Term  reversing  the  judgment  should 
be  affirmed,  and  judgment  absolute  directed  for  the  defendant 
on  the  stipulation  with  costs  in  all  courts. 

All  concur,  except  Gray  and  Bartlett,  JJ.,  not  voting,  and 
Haight,  J.,  not  sitting. 

Ordered  accordingly. 


{g)  Antecedent  act  or  agreement  as  a  consideration. 

HUNT  V.  BATE. 

In  the  Common  Pleas,  Easter  Term,  1568. 

[Reported  in  Dyer  272.  j 

The  servant  of  a  man  was  arrested  and  imprisoned  in  the 
Compter  in  London  for  a  trespass,  and  he  was  let  to  mainprise 
by  the  manucaption  of  two  citizens  of  London  (who  were  well 
acquainted  with  the  master),  in  consideration  that  the  business 
of  the  master  should  not  go  undone.  And  afterward,  before 
judgment  and  condemnation,  the  master  upon  the  said  friendly 
consideration  promised  and  undertook  to  one  of  the  mainpernors 


SEC.  11^.]  SIDENHAM    &    WOKLINGTON'S    CASE.  589 

to  save  him  harmless  against  the  party  plaintiff  from  all  dam- 
ages and  costs  if  any  should  be  adjudged,  as  happened  after- 
ward in  reality  ;  whereupon  the  surety  was  compelled  to  pay 
the  condemnation,  s.  ^£"31,  etc.  And  tliereupon  he  brought  an 
action  on  the  case,  and  the  undertaking  was  traversed  by  the 
master,  and  found  in  London  at  nisi  priiis  against  him.  And 
now  in  arrest  of  judgment  it  was  moved  that  the  action  does 
not  lie.  And  by  the  opinion  of  the  Court  it  does  not  lie  in  this 
matter,  because  there  is  no  consideration  wherefore  the  defend- 
ant should  be  charged  for  the  debt  of  his  servant,  unless  the 
master  had  first  promised  to  discharge  the  plaintiff  before  the 
enlargement,  and  mainprise  made  of  his  servant,  for  the  master 
did  never  make  request  to  the  plaintiff  for  his  servant  to  do  so 
much,  but  he  did  it  of  his  own  head,  wherefore,  etc. 

But  in  another  like  action  on  the  case  brought  upon  a  promise 
of  ;!£2o  made  to  the  plaintiff  by  the  defendant  in  consideration 
that  the  plaintiff,  at  the  special  instance  of  the  said  defendant, 
had  taken  to  wife  the  cousin  of  the  defendant,  that  was  good 
cause,  although  the  marriage  was  executed  and  past  before  the 
undertaking  and  promise,  because  the  marriage  ensued  the  re- 
quest of  the  defendant.  And  land  may  be  also  given  in  frank- 
marriage  with  the  cousin  of  the  donor  as  well  after  the  marriage 
as  before,  because  the  marriage  may  be  intended  the  cause,  etc. 
And  therefore  the  opinion  of  the  Court  in  this  case  this  term 
was  that  the  plaintiff  should  recover  upon  the  verdict,  etc.  And 
so  note  the  diversity  between  the  aforesaid  cases. 


SIDENHAM  AND  WORLINGTON'S    CASE. 

In  the  Common  Pleas,  Easter  Term,  1585. 

^Reported  in  Leotiard22^.\ 

In  an  action  upon  the  case  upon  a  promise,  the  plaintiff  de- 
clared that  he,  at  the  request  of  the  defendant,  was  surety  and 
bail  for  J.  S.,  who  was  arrested  into  the  King's  Bench,  upon  an 
action  of  ^30,  and  that  afterward,  for  the  default  of  J.  S.,  he 
was  constrained  to  pay  the  ^^30,  after  which,  the  defendant 
meeting  with  the  plaintiff,  promised  him  for  the  same  consider- 
ation that  he  would  repay  that  jQ^o  which  he  did  not  pay,  upon 
which  the  plaintiff  brought  the  action  ;  the  defendant  pleaded 
non  assumpsit,  upon  which  issue  was  joined,  which  was  found 
for  the    plaintiff.      Walmesley    for    the    defendant   moved_  the 


590  SIDENHAM    &    WORLINGTON'S    CASE.  [CHAP.  I. 

Court,    that  this  consideration    will    not   maintain   the   action, 
because  the  consideration  and  promise  did  not  concur  and  go 
together  ;  for  the  consideration  was  long  before  executed,  so  as 
now  it  cannot  be  intended  that  the  promise  was  for  the  same 
consideration.     As  if  one  giveth  me  a  horse,  and  a  month  after 
I  promise  him  ;^io  for  the  said  horse,  he  shall  never  have  debt 
for  the  ;^io   nor  assumpsit  upon   that  promise,  for  there  it   is 
neither  contract  nor  consideration,  because  the  same  is  executed. 
Anderson.     This  action  will  not  lie,  for  it  is  but  a  bare  agree- 
ment and  nudum  pactum^  because  the  contract  was  determined. 
and  not  in  esse  at  the  time  of  the  promise  ;  but  he  said  it  is 
otherwise  upon  a  consideration  of  marriage  of  one  of  his  cousins, 
for  marriage    is    always    a    present    consideration.       Windham 
agreed  with  Anderson,  and  he  put  the  case  in  3  H.  7.     If  one 
selleth  a  horse  unto  another,  and  at  another  day  he  will  warrant 
him  to  be  sound  of  limb  and  member,  it  is  a  void  warrant,  for 
that  such  warranty  ought  to  have  been  made  or  given  at  such 
time  as   the  horse  was   sold.     Periam,   J.,   conceived   that  the 
action  did  well  lie,  and  he  said  that  this  case  is  not  like  unto  the 
cases  which  have  been  put  of  the  other  side  ;  for  there  is  a 
great  difference  betwixt  contracts  and  this  case,  for  in  contracts 
upon  sale  the  consideration  and  the  promise  and  the  sale  ought 
to  meet  together,  for  a  contract  is  derived  from  con  and  trahere, 
which  is  a  drawing  together,  so  as  in  contracts  everything  which 
is  requisite  ought  to  concur  and  meet  together — viz.,  the  con- 
sideration of  the  one  side  and  the  sale  or  the  promise  on  the 
other  side.     But  to  maintain  an  action  upon  an  assumpsit,  the 
same  is  not  requisite,  for  it  is  sufficient  if  there  be  a  moving 
cause  or  consideration  precedent,  for  which  cause  or  considera- 
tion the  promise  was  made,  and  such  is  the  common  practice  at 
this  day.     For  in  an  action  upon  the  case,  upon  a  promise,  the 
declaration  is  laid  that  the  defendant  for,  and  in  consideration 
of  ;^2o  to  him  paid   {postea  scil.)  that  is  to  say,  at  a  day  after 
super  se  assumpsit,  and  that  is  good  ;  and  yet  there  the  consider- 
ation is  laid  to  be  executed.     And  he  said  that  the  case  in  Dyer, 
10  Eliz.  272,  would  prove  the  case,  for  there  the  case  was  that 
the  apprentice  of  one  Hunt  was  arrested  when  his  master  Hunt 
was  in  the  country,  and  one  Baker,   one  of  the   neighbors  of 
Hunt,  to  keep  the  said  apprentice  out  of  prison,  became  his  bail, 
and  paid  the  debt  ;  afterward  Hunt,  the  master,  returning  out  of 
the  country,  thanked  Baker  for  his  neighborly  kindness  to  his 
apprentice,  and  promised  him  that  he  would  repay  him  the  sum 
which  he  had  paid  for  his  servant  and  apprentice.     And  after- 
ward upon  that  promise  Baker  brought  an  action  upon  the  case 
against  Hunt,  and  it  was  adjudged  in  that  case  that  the  action 


SEC.  11^.]  DOCKET  V.   VOYEL.  591 

would  not  lie,  because  the  consideration  was  precedent  to  the 
promise,  but  because  it  was  executed  and  determined  long 
before.  But  in  that  case  it  was  holden  by  all  the  justices  that 
if  Hunt  had  requested  Baker  to  have  been  surety  or  bail,  and 
afterward  Hunt  had  made  the  promise  for  the  same  considera- 
tion, the  same  had  been  good,  for  that  the  consideration  did 
precede,  and  was  at  the  instance  and  request  of  the  defendant. 
Rhodes,  J.,  agreed  with  Periam,  and  he  said  that  if  one  serve 
me  for  a  year,  and  hath  nothing  for  his  service,  and  afterward, 
at  the  end  of  the  year,  I  promise  him  ^^20  for  his  good  and 
faithful  service  ended,  he  may  have  and  maintain  an  action 
upon  the  case  upon  the  same  promise,  for  it  is  made  upon  a 
good  consideration  ;  but  if  a  servant  hath  wages  given  him,  and 
his  master  ex  abutidanti  doth  promise  him  ^10  more  after  his 
service  ended,  he  shall  not  maintain  an  action  for  that;i^io  upon 
the  said  promise,  for  there  is  not  any  new  cause  or  considera- 
tion preceding  the  promise,  which  difference  was  agreed  by  all 
the  justices,  and  afterward,  upon  good  and  long  advice,  and 
consideration  had  of  the  principal  case,  judgment  was  given 
for  the  plaintiff,  and  they  much  relied  upon  the  case  of  Hunt 
and  Baker,  10  Eliz.  Dyer,  272.     See  the  case  there. 


DOCKET  V.  VOYEL. 

In  the  Common  Pleas,  Easter  Term,  1602 

[Reported  in  Croke,  Elizabeth,  885.] 

Assumpsit.  Whereas  the  defendant.  May  loth,  40  Eliz,,  in 
consideration  that  the  plaintiff,  at  a  certain  day  then  past,  at  the 
defendant's  request,  had  lent  unto  him  ^30  for  such  a  time  ; 
that  the  defendant  assumed  to  lend  unto  the  plaintiff  upon  re- 
quest jQz^  for  a  year  or  otherwise  to  give  him  40J.  The  plain- 
tiff alleged  that  the  defendant  did  not  lend  him  ^30  licet  rcquisi- 
tus,  etc.,  nor  pay  the  said  ^os.  And  it  was  thereupon  demurred, 
because  the  consideration  was  past  and  executed,  and  the  con- 
sideration and  promise  ought  to  go  together,  or  else  it  ought  to 
be  a  consideration  continuing.  Wherefore  for  this  cause  it  was 
adjudged  for  the  defendant. 


592  LAMPLEIGH   V.   BRATIIWAIT.  [CHAP.  I. 

LAMPLEIGH  v.  BRATHWAIT. 

In  the  Common  Pleas,   Michaelmas  Term,  1615. 

{Reported  in  Hobart  105.] 

Anthony  Lampleigh  brought  an  assumpsit  against  Thomas 
Brathwait,  and  declared,  that  whereas  the  defendant  had  felo- 
niously slain  one  Patrick  Mahume,  the  defendant  after  the  said 
felony  done,  instantly  required  the  plaintiff  to  labor,  and  do  his 
endeavor  to  obtain  his  pardon  from  the  king.  Whereupon  the 
plaintiff  upon  the  same  request  did,  by  all  the  means  he  could 
and  many  days'  labor,  do  his  endeavor  to  obtain  the  king's  par- 
don for  the  said  felony — viz.,  in  riding  and  journeying  at  his 
own  charges  from  London  to  Roiston  when  the  king  was  there, 
and  to  London  back,  and  so  to  and  from  Newmarket,  to  obtain 
pardon  for  the  defendant  for  the  said  felony.  Afterward  scil.^ 
etc.,  in  consideration  of  the  premises,  the  said  defendant  did 
promise  the  said  plaintiff  to  give  him  ;^ioo,  and  that  he  had 
not,  etc.,  to  his  damage  jQ^'zo. 

To  this  the  defendant  pleaded  non  assu?npsit,  and  found  for  the 
plaintiff  damage  ;^ioo.  It  was  said  in  arrest  of  judgment  that 
the  consideration  was  passed. 

But  the  chief  objection  was  that  it  doth  not  appear,  that  he 
did  anything  toward  the  obtaining  of  the  pardon,  but  riding  up 
and  down,  and  nothing  done  when  he  came  there.  And  of  this 
opinion  was  my  Brother  Warburton,  but  myself  and  the  other 
two  judges  were  of  opinion  for  the  plaintiff,  and  so  he  had 
judgment. 

First,  it  was  agreed  that  a  mere  voluntary  courtesy  will  not 
have  a  consideration  to  uphold  an  assumpsit.  But  if  that  courtesy 
were  moved  by  a  suit  or  request  of  the  party  that  gives  the 
assumpsit,  it  will  bind,  for  the  promise,  though  it  follows,  yet  it 
is  not  naked,  but  couples  itself  with  the  suit  before,  and  the 
merits  of  the  party  procured  by  that  suit,  which  is  the  differ- 
ence. Pasch.  10  Eliz.  Dyer,  272  ;  Hunt  and  Bates.  See  One- 
ley's  Case,  19  Eliz.  Dyer,  355. 

Then  to  the  main  point  it  is  first  clear  that  in  this  case  upon 
the  issue  non  assumpsit  all  these  points  were  to  be  proved  by  the 
plaintiff. 

1.  That  the  defendant  had  committed  the  ielony,  prout,  etc. 

2.  Then  that  he  requested  the  plaintiff's  endeavor,  prout,  etc. 

3.  That  thereupon  the  defendant  made  his  proof,  prout,  etc. 

4.  That  thereupon  the  defendant  made  his  promise,  prout,  etc. 


SEC.  II^.J  LAMPLEIGH   f.    BRATIIWAIT.  593 

For  wheresoever  I  build  my  promise  upon  a  thing  done  at 
my  request,  the  execution  of  the  act  must  pursue  the  request, 
for  it  is  like  a  case  of  commission  for  this  purpose. 

So  then  the  issue  found  ui  supra  is  a  proof  that  he  did  his  en- 
deavor, according  to  the  request,  for  else  the  issue  could  not 
have  been  found,  for  that  is  the  difference  between  a  promise 
upon  a  consideration  executed  and  executory,  that  in  the  exe- 
cuted you  cannot  traverse  the  consideration  by  itself,  because 
it  is  passed  and  incorporated  and  coupled  with  the  promise. 
And  if  it  were  not  indeed  then  acted,  it  is  nudum  pactum. 

But  if  it  be  executory,  as  in  consideration,  that  you  shall 
serve  me  a  year,  1  will  give  you  jQio  ;  here  you  cannot  bring 
your  action  till  the  service  performed.  But  if  it  were  a  promise 
on  either  side  executory,  it  needs  not  to  aver  performance,  for 
it  is  the  counter-promise,  and  not  the  performance  that  makes 
the  consideration,  yet  it  is  a  promise  before,  though  not  bind- 
ing, and  in  the  action  you  shall  lay  the  promise  as  it  was  and 
make  special  averment  of  the  service  done  after. 

Now  if  the  service  were  not  done,  and  yet  the  promise  made, 
prout,  etc.,  the  defendant  must  not  traverse  the  promise,  but  he 
must  traverse  the  performance  of  the  service,  because  they  are 
distinct  in  fact,  though  they  must  concur  to  the  bearing  of  the 
action. 

Then  also  note  here  that  it  was  neither  required  nor  promised 
to  obtain  the  pardon,  but  to  do  his  endeavor  to  obtain  it,  the 
one  was  his  end  and  the  other  his  office. 

Now  then  he  hath  laid  expressly  in  general  that  he  did  his 
endeavor  to  obtain  it — viz.,  in  equitando,  etc.,  to  obtain.  Now, 
then,  clearly  the  substance  of  this  plea  is  general,  for  that  an- 
swers directly  the  request,  the  special  assigned  is  but  to  inform 
the  Court  ;  and  therefore  clearly,  if  upon  the  trial  he  could 
have  proved  no  riding,  nor  journeying,  yet  any  other  effectual 
endeavor  according  to  the  request  would  have  served,  and  there- 
fore if  the  consideration  had  been  that  he  should  endeavor  in 
the  future,  so  that  he  must  have  laid  his  endeavor  expressly, 
and  had  done  it  as  he  doth  here,  and  the  defendant  had  not. 
denied  the  promise,  but  the  endeavor,  he  must  have  traversed 
the  endeavor  in  the  general,  not  the  riding,  etc.,  in  the  special  ; 
which  proves  clearly  that  is  not  the  substance,  and  that  the 
other  endeavor  would  serve.  This  makes  it  clear  that  though 
particulars  ought  to  be  set  forth  to  the  Court,  and  those  suffi- 
cient, which  were  not  done,  which  might  be  cause  of  demurrer, 
yet  being  but  matter  of  form,  and  the  substance  in  the  general, 
which  is  here  in  the  issue  and  verdict,  it  were  cured  by  the  ver- 
dict.   But  the  special  is  also  well  enough,  for  all  is  laid  down  for 


594  HOPKINS   AND   WIFE   V.    LOGAN.  [CHAP.  I. 

the  obtaining  of  the  pardon  which  is  within  the  request  ;  and 
therefore  suppose  he  had  ridden  to  that  purpose,  and  Brathwait 
had  died,  or  himself,  before  he  could  do  anything  else,  or  that 
another  had  obtained  the  pardon  before  or  the  like,  yet  the 
promise  had  holden. 

And  observe  that  case  22  E.  4,  40,  condition  of  an  obligation 
to  show  a  sufficient  discharge  of  an  annuity,  you  must  plead  the 
certainty  of  the  discharge  to  the  Court  ;  the  reason  whereof 
given  by  Brion  and  Choke  is  that  the  plea  there  contains  two 
parts,  one  a  triaX  per  pais,  sciL,  the  writing  of  the  discharge,  the 
other  by  the  Court,  scil.  the  sufficiency  and  validity  of  it,  which 
the  jury  could  not  try,  for  they  agree  that  if  the  condition  had 
been  to  build  a  house  agreeable  to  the  state  of  the  obligee, 
because  it  was  a  case  all  proper  for  the  country  to  try,  it  might 
have  been  pleaded  generally,  and  then  it  was  a  demurrer,  not 
an  issue,  as  is  here. 


HOPKINS  AND  WIFE  V.  LOGAN. 

In  the  Exchequer,  Easter  Term,  1839. 

[Reported  m  5  Meeson  &^  Welsby  241.] 

Assumpsit.  The  declaration  stated  that  after  the  intermar- 
riage of  the  plaintiffs,  and  before  the  commencement  of  this 
suit,  to  wit,  on  October  ist,  1838,  at  the  request  of  the  defend- 
ant, an  account  was  stated  by  and  between  the  said  Richard 
Hopkins,  for  and  on  behalf  of  himself  and  his  said  wife  Ellen, 
on  the  one  part,  and  the  defendant  on  the  other  part,  of  and 
concerning  certain  moneys,  amounting  to  a  large  sum  of  money, 
to  wit,  the  sum  of  ^1000,  by  the  said  Ellen,  while  she  was  un- 
married, lent  and  advanced  to  the  defendant  at  his  request,  and 
remaining  unpaid  before,  at,  and  after  the  time  of  the  said 
intermarriage,  and  of  and  concerning  certain  other  moneys, 
amounting  in  the  whole  to  a  large  sum  of  money,  to  wit,  to  the 
sum  of  ^555  3^.  11^.,  by  the  defendant  before  the  stating  of  the 
said  account  paid  to  the  plaintiff  ;  and  which  said  last-men- 
tioned moneys  the  said  plaintiff,  Richard  Hopkins,  for  and  on 
behalf  of  himself  and  his  said  wife,  at  the  time  of  the  said  stat- 
ing of  the  said  account,  and  at  the  request  of  the  defendant, 
agreed  should  be  taken  and  considered  as  satisfying  and  dis- 
charging so  much  of  the  said  first-mentioned  sum  of  money  ; 
and  upon  the  account  so  stated  as  aforesaid,  the  defendant  was 
then  found  to  be  and  then  was  in  arrear  and  indebted  to  the 


SEC.  IIi,^]  IIOrKIXS   AND    WIFE   V.    LOGAN.  595 

plaintiff  in  a  large  sum  of  money,  to  wit,  the  sum  of  ;^444 
16^.  id.,  residue  of  the  said  first-mentioned  sum  of  money  ;  and 
being  so  found  in  arrear  and  indebted  as  aforesaid,  the  defend- 
ant, in  consideration  of  the  premises,  promised  the  plaintiffs  to 
pay  them  the  said  last-mentioned  sum  of  money  on  October  loth 
then  next  ensuing,  which  period  had  elapsed  before  the  com- 
mencement of  this  suit.  Breach,  in  non-payment  of  the  last- 
mentioned  sum  of  money. 

Pleas,  first,  that  the  said  sum  of  ;^iooo  in  the  declaration 
mentioned  was  secured  to  the  said  Ellen  Hopkins  before  her 
said  intermarriage,  by  a  certain  bond  or  writing  obligatory 
sealed  with  the  seal  of  the  said  defendant,  and,  to  wit,  on 
April  6th,  1836,  given  by  the  said  defendant  to  the  said  Ellen 
Hopkins  before  the  said  intermarriage,  at  the  request  of  the 
said  Ellen  Hopkins,  for  and  on  account  of  the  said  ^1000  ;  and 
that  the  said  Ellen  Hopkins  before  her  said  intermarriage,  to 
wit,  on  April  6th,  1836,  took,  accepted,  and  received  the  said 
bond  or  writing  obligatory  of  and  from  the  defendant,  for  and 
on  account  of  the  said  debt,  and  in  lieu,  stead,  satisfaction,  and 
discharge  of  the  same  ;  and  that  by  the  said  bond  or  writing 
obligatory  the  said  defendant,  to  wit,  then  became  bound  to 
the  said  Ellen  Hopkins,  then  Ellen  Logan,  in  the  penal  sum  of 
^2000,  subject  to  a  certain  condition  thereunder  written,  by 
which  the  payment  of  the  said  sum  of  ;^iooo  was  to  take  place 
and  be  made  by  the  defendant  to  the  said  Ellen  Hopkins  on 
April  6th,  which  will  be  in  the  year  1840  ;  and  that  the  account 
of  the  declaration  mentioned,  as  far  as  regards  the  said  sum  of 
^1000  therein  mentioned,  was  stated  of  and  concerning  the 
said  sum  of  ;^  1000  so  secured,  and  for  which  the  said  bond  or 
writing  obligatory  had  been  given  and  accepted  as  aforesaid, 
^nd  of  and  concerning  the  money  supposed  at  the  time  of  the 
said  account  to  be  due  on  the  said  bond  ;  whereas  no  part  of 
the  said  sum  of  ^^looo  was  then  due  or  payable  upon  the  said 
bond,  and  so  the  said  account  was  stated  erroneously  and  in 
mistake.     Verification. 

Special  demurrer  and  joinder  in  demurrer. 

J.  Henderson  in  support  of  the  demurrer. 

Crompton,  contra. 

Lord  Abinger,  C.B.  I  am  of  opinion  that  this  declara- 
tion is  bad,  for  that  the  contract  declared  upon  is  not  binding 
on  both  parties,  the  consideration  being  executed  upon  which 
the  new  promise  is  attempted  to  be  founded.  The  promise,  it 
is  true,  proceeds  both  on  the  accounting  and  on  the  payment  of 
the  ;;^555  by  the  defendant  ;  but  both  those  considerations  are 
executed.     The  liability  of  the  defendant  on  the  account  stated; 


596  HOPKINS   AND    WIFE   V.    LOGAN.  [CHAP.  I. 

would  be  to  pay  the  amount  on  request  ;  to  render  him  liable 
on  the  promise  here  alleged,  to  pay  on  a  future  day,  there  ought 
to  be  some  new  consideration.  I  think  it  is  also  questionable, 
whether  enough  appears  upon  the  allegations  in  the  declaration 
to  found  any  promise,  inasmuch  as  there  is  no  direct  statement 
that  the  money  was  due  at  the  time  of  the  accounting  ;  and  1 
am  not  prepared  to  say  that  the  omission  of  the  words  "  then 
due"  is  immaterial.  Again,  it  appears  that  the  ^^555  has  been 
paid  to  the  plaintiffs,  which  imports  a  payment  to  the  husband  ; 
but  this  must  be  on  the  wife's  account,  and,  as  far  as  appears, 
in  part  of  the ;^  1000  due  to  her  ;  if  so,  this  payment  only  leaves 
the  rest  of  the  debt  to  stand  as  it  did  originally,  and  can  there- 
fore furnish  no  consideration  for  the  defendant's  agreement. 

As  to  the  plea,  I  am  inclined  to  think  it  good,  but  it  is  un- 
necessary to  decide  upon  it. 

Parke,  B.  I  concur  in  thinking  that  the  judgment  must  be 
for  the  defendant.  If  it  were  necessary  to  decide  upon  the 
validity  of  the  plea,  I  should  be  inclined  to  say  that  it  is  bad  ; 
but,  as  the  Court  are  agreed  that  the  declaration  cannot  be  sup- 
ported, it  is  not  necessary  to  pronounce  upon  the  sufficiency  of 
the  plea.  If  the  declaration  were  upon  an  account  stated  ?>ierely, 
and  concluded  with  the  promise  implied  by  law,  the  action 
would  be  properly  brought  by  both  husband  and  wife,  for  the 
nature  of  the  debt  would  not  be  changed.  But  there  are  sev- 
eral fatal  objections  to  the  declaration  as  it  stands  ;  first,  that 
this  is  not  an  account  really  stated,  because  it  is  hot  shown 
that  any  money  was  then  in  arrear  ;  and  the  subsequent  aver- 
ment does  not  supply  the  defect,  because  there  is  no  foundation 
laid  for  the  accounting  ;  second,  the  promise  as  laid  cannot  be 
supported,  because  there  is  no  consideration  for  any  promise 
different  from  that  which  the  law  implies.  The  promise  which 
arises  in  law  upon  an  account  stated,  is  to  pay  on  request,  and 
any  other  promise  is  jiudutn  pactum,  unless  made  upon  a  new 
consideration.  At  the  time  of  the  alleged  promise,  the  party  is 
liable  to  pay  in prcBsenti  on  request,  and  if,  by  a  simple  promise, 
without  fresh  consideration,  there  can  be  a  contract  for  future 
payment,  the  Statute  of  Limitations  may  be  defeated  by  a  mere 
verbal  promise.  Any  promise  to  pay  money  in  futuro,  which  is 
payable  iti prcesetiti,  is  bad,  unless  it  be  on  a  new  consideration. 
The  plaintiff  here  proceeds  on  an  executed  consideration,  which 
constitutes  an  existing  debt,  and  no  such  new  consideration 
appears  in  the  present  case. 

Alderson,  B.  If  it  were  necessary  to  give  an  opinion  upon 
the  plea,  I  should  wish  to  take  some  time  to  consider  it  ;  but 
I  concur  with  the  rest  of  the  Court  in  thinking^  that  the  declara- 


SEC.  11^.]  ROSCORLA   V.    THOMAS.  597 

tion  is  bad.  The  consideration  is  clearly  executed,  and  the 
promise  which  the  law  implies  thereon  is  to  pay  on  request.  In 
order  to  convert  that  promise  into  a  promise  to  pay  at  a  future 
day,  there  must  be  a  new  consideration.  Here  there  is  none, 
and  on  that  ground  the  declaration  is  bad.  If  it  were  other- 
wise, the  consequence  would  follow,  that,  as  such  a  promisej 
may  be  by  word  of  mouth,  the  Statute  of  Limitations  might 
always  be  evaded  without  a  writing. 

Maule,  B.  I  agree  that  an  executed  consideration  is  no  con- 
sideration for  any  other  promise  than  that  which  the  law  would 
imply  ;  if  it  were,  there  would  be  two  co-existing  promises  on 
one  consideration.  On  this  ground,  without  adverting  to  the 
objections  raised  to  the  plea,  I  think  that  the  defendant  is  en- 
titled to  judgment. 

Judgment  for  the  defendant. 


ROSCORLA  V.  THOMAS. 

In  the  Queen's  Bench,  Trinity  Term,  1842. 

^Reported  in  3  Queen's  Bench  Reports  234.] 

Assumpsit.  The  declaration  stated  that,  whereas  heretofore, 
to  wit,  etc.,  in  consideration  that  plaintiff,  at  the  request  of  de- 
fendant, had  bought  of  defendant  a  certain  horse,  at  and  for  a 
certain  price,  etc.,  to  wit,  etc.,  defendant  promised  plaintiff  that 
the  said  horse  did  not  exceed  five  years  old,  and  was  sound, 
etc.,  and  free  from  vice  ;  nevertheless  defendant  did  not  per- 
form or  regard  his  said  promise,  but  thereby  deceived  and  de- 
frauded plaintiff  in  this,  to  wit,  that  the  said  horse,  at  the  time 
of  the  making  of  the  said  promise,  was  not  free  from  vice,  but, 
on  the  contrary  thereof,  was  then  very  vicious,  restive,  ungov- 
ernable, and  ferocious  ;  whereby,  etc. 

Pleas  :   i.  Non  assumpsit.     Issue  thereon. 

2.  That  the  horse,  at  the  time  of  the  supposed  promise,  was 
free  from  vice,  and  was  not  vicious,  restive,  ungovernable  or 
ferocious,  in  manner,  etc.;  conclusion  to  the  country.  Issue 
thereon.' 

On  the  trial,  before  Wightman,  J.,  at  the  Cornwall  spring 
assizes,  1841,  a  verdict  was  found  for  the  plaintiff  on  both  the 
above  issues.     In  Easter  Term,  1841,  Bompas  obtained  a  rule 

'  There  were  other  counts,  on  which  issues  were  joined  and  found  for  the 
defendant. 


598  ROSCORLA   V.    THOMAS.  [CHAP.  I. 

iiisi  for  arresting  the  judgment  on  the  first  count.'  In  last 
term,' 

Eric  and  Butt  showed  cause. 

Bompas  and   Slade,  contra. 

I^ORD  DeniMan,  C.J.,  in  this  term  (May  30th)  delivered  the 
judgment  of  the  Court. 

This  was  an  action  of  assumpsit  for  breach  of  warranty  of  the 
soundness  of  a  horse.  The  first  count  of  the  declaration,  upon 
which  alone  the  question  arises,  stated  that,  in  consideration 
that  the  plaintiff,  at  the  request  of  the  defendant,  had  bought 
of  the  defendant  a  horse  for  the  sum  of  ^30,  the  defendant 
promised  that  it  was  sound  and  free  from  vice.  And  it  was 
objected,  in  arrest  of  judgment,  that  the  precedent  executed 
consideration  was  insufficient  to  support  the  subsequent  prom- 
ise.    And  we  are  of  opinion  that  the  objection  must  prevail. 

It  may  be  taken  as  a  general  rule,  subject  to  exceptions  not 
applicable  to  this  case,  that  the  promise  must  be  co-extensive 
with  the  consideration.  In  the  present  case,  the  only  promise 
that  would  result  from  the  consideration,  as  stated,  and  be  co- 
extensive with  it,  would  be  to  deliver  the  horse  upon  request. 
The  precedent  sale,  without  a  warranty,  though  at  the  request 
of  the  defendant,  imposes  no  other  duty  or  obligation  upon 
him.  It  is  clear,  therefore,  that  the  consideration  stated  would 
not  raise  an  implied  promise  by  the  defendant  that  the  horse  was 
sound  or  free  from  vice. 

But  the  promise  in  the  present  case  must  be  taken  to  be,  as 
in  fact  it  was,  express  j  and  the  question  is,  whether  that  fact 
will  warrant  the  extension  of  the  promise  beyond  that  which 
would  be  implied  by  law  ;  and  whether  the  consideration, 
though  insufficient  to  raise  an  implied  promise,  will  nevertheless 
support  an  express  one.      And  we  think  that  it  will  not. 

The  cases  in  which  it  has  been  held  that,  under  certain  cir- 
cumstances, a  consideration  insufficient  to  raise  an  implied 
promise  will  nevertheless  support  an  express  one,  will  be  found 
collected  and  reviewed  in  the  note^  to  Wennall  v.  Adney,*  and 
in  the  case  of  Eastwood  v.  Kenyon.^  They  are  cases  of  voidable 
contracts  subsequently  ratified,  of  debts  barred  by  operation  of 
law,  subsequently  revived,  and  of  equitable  and  moral  obliga- 
tions, which,  but  for  some  rule  of  law,  would  of  themselves 
have  been  sufficient  to   raise  an   implied   promise.      All   these 

■  The  rule  was  also  for  entering  a  verdict,  on  the  evidence,  for  the  defend- 
ant ;  but  on  this  the  Court  did  not  decide. 

«  April  28th,  1842.  Before  Lord  Denman,  C.J.,  Patteson,  Williams,  and 
Wightman,  J  J. 

3  3  Bos.  &  Pul.  249.  ■»  Idtd.  »  II  A.  &  E.  438. 


SEC.  11^.]  VICTORS   V.    DAVIES.  599 

cases  are  distinguishable  from,  and  indeed  inapplicable  to,  the 
present,  which  appears  to  us  to  fall  within  the  general  rule, 
that  a  consideration  past  and  executed  will  support  no  other 
promise  than  such  as  would  be  implied  by  law. 

The  rule  for  arresting  the  judgment  upon  the  first  count  must 
therefore  be  made  absolute. 

Rule  absolute. 


VICTORS  V.  DAVIES. 
[n  the  Exchequer,  April  22,  1844. 
[Reported  in  12  Meesoti  &^  We  Is  by  7  5  8.  J 

Assumpsit.  The  declaration  stated  that  the  defendant,  on 
March  6th,  1844,  was  indebted  to  the  plaintiff  in  the  sum  of 
^10,  for  money  lent  by  the  plaintiff  to  the  defendant. 

Special  demurrer,  assigning  the  following  causes  :  That  it  is 
not  alleged  in  the  declaration  that  the  money  was  lent  to  the 
defendant  at  his  request,  and  that  therefore  there  is  no  consid- 
eration to  support  the  promise  ;  nor  does  it  sufficiently  appear 
that  the  defendant  was  indebted  to  the  plaintiff. 

Pearson  in  support  of  the  demurrer.  The  declaration  is  in- 
sufficient for  want  of  the  averment  that  the  money  was  lent  to 
the  defendant  "  at  his  request."  [Alderson,  B.  How  can  there 
be  a  lender  unless  there  be  also  a  borrower  ?]  A  plaintiff  is 
bound  to  allege  a  request  wherever  the  consideration  is  exe- 
cuted. In  the  notes  to  Osborne  z;.  Rogers,  i  Saund.  264,  note  i, 
it  is  said  that  "  a  past  consideration  is  not  sufficient  to  support 
a  subsequent  promise,  unless  there  was  a  request  of  the  party, 
either  express  or  implied,  at  the  time  of  performing  the  consid- 
eration." And  in  a  note  by  the  learned  editors  of  the  fifth 
edition,  it  is  added,  "  So  even  an  affidavit  (to  hold  to  bail)  of 
debt  for  money  lent  and  for  goods  sold  and  delivered,  and  for 
work  and  labor,  has  been  held  irregular,  because  it  omitted  to 
state  that  it  was  '  at  the  instance  and  request  of  the  defendant,' 
although  it  stated  that  it  was  '  to  and  for  his  use  and  on  his 
account  ;  '  "  for  which  they  cite  Durnford  v.  Messiter,  5  M.  & 
Selw.  446.  In  Chitty  on  Pleading,  Vol.  I.,  p.  353  (7th  ed.),  it 
is  also  said,  "  In  each  of  these  counts  upon  an  executed  consid- 
eration, except  that  for  money  had  and  received,  and  the  ac- 
count stated,  it  is  necessary  to  allege  that  the  consideration  of 
the  debt  was  performed  at  the  defendant's  request,  though 
such  request  might,  in  some  cases,  be  implied  in  evidence." 


60O  VICTORS   V,    DAVIES.  [CHAP.  I. 

[Parke,  B.  There  is  a  very  learned  note  of  my  Brother  Man- 
ning on  this  subject,  i  Man.  &  Gr.  265,  in  which  he  goes  into 
the  whole  law  with  respect  to  alleging  a  request,  and  points  out 
the  error  into  which  Williams  appears  to  have  fallen  in  his  com- 
ment upon  Osborne  v.  Rogers.  The  note  is  thus  :  "  The  con- 
sideration being  executory,  the  statement  of  the  request  in  the 
declaration,  though  mentioned  in  the  undertaking,  appears  to 
have  been  unnecessary.  In  Osborne  v.  Rogers  the  considera- 
tion of  a  promise  is  laid  to  be,  that  the  said  Robert,  at  the 
special  instance  and  request  of  the  said  William,  would  serve 
the  said  William,  and  bestow  his  care  and  labor  in  and  about 
the  business  of  the  said  William  ;  and  the  declaration  alleges, 
that  Robert,  confiding  in  the  said  promise  of  William,  after- 
ward went  into  the  service  of  William,  and  bestowed  his  care 
and  labor  in  and  about,  etc.  Here  the  consideration  is  clearly 
executory,  yet  Williams,  in  a  note  to  the  words  '  at  the  special 
instance  and  request,*  says,  '  these  words  are  necessary  to  be 
laid  in  the  declaration,  in  order  to  support  the  action.  It  is 
held  that  a  consideration  executed  and  past — as,  in  the  present 
case,  the  service  performed  by  the  plaintiff  for  the  testator  in 
his  lifetime  for  several  years  then  past — is  not  sufficient  to  main- 
tain an  assumpsit,  unless  it  was  moved  by  a  precedent  request 
and  so  laid.'  The  statement,  according  to  modern  practice,  of 
the  accrual  of  a  debt  for,  or  the  making  of  a  promise  for  the 
payment  of,  the  price  of  goods  sold  and  delivered,  or  for  the 
repayment  of  money  lent,  as  being  in  consideration  of  goods 
sold  and  delivered,  or  money  lent  to  the  defendant,  at  his  request, 
is  conceived  to  be  an  inartificial  mode  of  declaring.  Even 
where  the  consideration  is  entirely  past,  it  appears  to  be  unnec- 
essary to  allege  a  request,  if  the  act  stated  as  the  consideration 
cannot,  from  its  nature,  have  been  a  gratuitous  kindness,  but 
iimports  a  consideration /(?r  se.  It  being  immaterial  to  the  right 
of  action  whether  the  bargain,  if  actually  concluded  and  exe- 
cuted, or  the  loan,  if  made,  and  the  moneys  actually  advanced, 
was  proposed  and  urged  by  the  buyer  or  by  the  seller,  by  the 
borrower  or  by  the  lender.  Vide  Rastall's  Entries,  tit.  '  Dette  ;  ' 
and  Co.  Ent.,  tit.  '  Debt.'  "  There  cannot  be  a  claim  for  money 
lent  unless  there  be  a  loan,  and  a  loan  imports  an  obligation 
to  pay.  If  the  money  is  accepted,  it  is  immaterial  whether  or 
not  it  was  asked  for.  The  same  doctrine  will  not  apply  to^ 
money  paid,  because  no  man  can  be  a  debtor  for  money  paid 
unless  it  was  paid  at  his  request.  What  my  Brother  Manning 
says,  in  the  note  to  which  I  have  referred,  is  perfectly  correct.] 
Pollock,  C.B.  There  cannot  be  a  doubt  about  this  case  ; 
the  statement  that  the  money  was  lent  implies  that  it  was  ad- 


SEC.  11^.]  HATCH    V.    PURCELL.  6oi 

vanced  at  the  request  of  the  defendant.     There  must  be  judg- 
ment for  the  plaintiff. 

Parke,  Alderson,  and  Rolfe,  BB.,  concurred. 

Judgment  for  the  plaintiff. 


HATCH,  Administrator,  Appellant,  v.  PURCELL. 

In  the  Superior  Court  of  Judicature  of  New  Hampshire, 
December  Term,  1850. 

[Reported  in  i  Foster  544.] 

Appeal  from  the  decree  of  the  judge  of  probate  for  this 
county,  accepting  the  report  of  the  commissioner  of  insolvency 
upon  the  estate  of  Sarah  Gardner,  the  widow  of  William 
Gardner, 

James  W.  Emery,  Esq.,  was  appointed  administrator  of  the 
estate,  but  resigned  his  trust,  and  Albert  R.  Hatch,  Esq.,  was 
appointed  administrator  de  bonis  non.  Abraham  Wendell  was 
permitted  by  the  Court  to  appear  and  prosecute  the  appeal. 

The  declaration  filed  by  the  appellee  was  in  assumpsit  for 
money  lent,  money  paid,  services  rendered,  and  goods  sold. 
The  specification  included  money  paid  for  funeral  expenses,  and 
for  the  expenses  of  the  last  sickness,  amounting  to  the  sum  of 
$170.05,  sundry  miscellaneous  bills,  amounting  to  $25.92,  and  a 
claim  arising  out  of  services  performed  in  the  family  of  the 
deceased  from  August  nth,  1835,  to  August  nth,  1841,  312 
weeks  at  %2  per  week,  $624,  the  whole  claim  amounting  to 
$819.97.  The  sum  allowed  by  the  commissioner  for  her  ser- 
vices, and  the  interest  thereon,  was  $702.83.  The  appeal  stated 
that  the  appellant  was  dissatisfied  with  the  allowance  of  the 
claim  for  services,  and  therefore  claimed  an  appeal.  The  coun- 
sel for  the  appellee  contended,  that  as  this  was  the  only  matter 
stated  as  a  reason  for  the  appeal,  it  was  the  only  claim  which 
the  appellant  had  a  right  to  contest,  but  the  appellant  contended 
that  all  the  claims  might  be  disputed. 

The  case  was  referred  to  an  auditor,  from  whose  report  the 
following  facts  appeared  : 

Mrs.  Gardner  was  a  sister  of  Susan  Purcell,  the  appellee.  As 
to  the  claim  of  the  appellee  on  account  of  her  services  in  tlie 
family  of  Mrs.  Gardner,  it  appeared  that  the  family  of  William 
Gardner  was  one  of  the  most  respectable  in  Portsmouth,  and 
lived  in  as  good  style  as  any  other,  and  Mrs.  Gardner  lived  in 
pretty  much  the  same  style  after  his  death  ;  that  Mrs.  Gardner 


002  HATCH    V.    PURCELL.  [cHAP,   I. 

for  six  years  and  more  prior  to  her  death  was  of  feeble  health, 
and  for  a  considerable  portion  of  the  time  was  an  invalid,  and 
unable  to  do  any  work  ;  that  the  appellee  during  that  time  had 
the  charge  and  management  of  all  the  domestic  affairs  in  the 
house  ;  she  gave  all  the  directions,  attended  to  the  work  in  the 
kitchen,  took  upon  herself  all  the  care  and  charge  of  the  domes- 
tic affairs,  and  was  capable  and  faithful  in  the  duties  required 
of  her  ;  that  Mrs.  Gardner  told  her  two  or  three  years  before 
her  death,  that  she  ought  to  be  paid  for  her  services  ;  that  it 
would  not  be  right  for  her  to  do  so  much  work  without  com- 
pensation for  it,  and  requested  her  to  bring  in  a  bill  against  her 
for  her  services  ;  and  the  auditor  is  of  opinion  that  her  services 
were  reasonably  worth  $2  per  week  during  the  time  for  which 
she  claims  compensation. 

She  testified  that  she  went  to  live  in  the  family  of  Mr.  Gard- 
ner, upon  his  invitation,  in  1820,  soon  after  he  was  married  to 
Mrs.  Gardner,  and  lived  there  until  his  death,  and  with  Mrs. 
Gardner  until  her  death  ;  that  she  went  to  live  there  as  a  rela- 
tive, and  not  as  a  hired  servant  under  pay,  and  that  there  was 
no  agreement  or  understanding  between  her  and  Mr.  Gardner, 
that  she  was  to  be  paid  for  her  services,  and  she  never  made 
any  claim  against  him  or  his  estate  therefor  ;  that  another 
sister,  who  was  blind,  lived  there  a  portion  of  the  time  as  a 
boarder,  and  Mrs.  Gardner  for  three  or  four. years  before  her 
husband's  death  was  in  a  bad  state  of  health,  and  unable  to 
attend  to  the  domestic  affairs  of  the  family,  and  she,  Susan, 
had  the  whole  charge  and  management  of  the  domestic  affairs 
in  the  house  in  the  same  manner  as  after  his  death  ;  that  after 
the  death  of  Mr.  Gardner,  she  and  Mrs.  Gardner  and  their 
blind  sister  lived  together  in  the  same  house,  and  kept  their 
money  in  the  same  trunk  in  common,  and  were  not  very  par- 
ticular with  each  other,  nothing  being  charged  for  the  board  of 
their  blind  sister  ;  that  she  paid  for  her  own  clothing,  and  there 
was  no  agreement  between  her  and  Mrs.  Gardner  that  she  was 
to  remain  there  as  a  hired  servant  under  pay,  and  do  the  work 
in  the  family  as  she  did,  and  there  was  no  agreement  or  under- 
standing between  them,  that  she  was  to  be  paid  for  her  ser- 
vices ;  that  Mrs.  Gardner  told  her  two  or  three  years  before 
her  death,  and  at  other  times,  that  she  ought  to  be  paid  for  her 
services  ;  that  she  ought  not  to  do  so  much  work  without  suit- 
able compensation,  and  requested  her  to  bring  in  a  bill  against 
her  for  her  services,  and  that  was  all  the  agreement  or  conver- 
sation that  was  had  between  them  in  regard  to  her  being  paid 
for  her  services.  The  counsel  for  the  said  Wendell  objected  to 
her  claim    for  her  services   on   the  ground  that  there  was  no 


SEC.  11-  ]  HATCH   V.    rURCELL.  603 

agreement,  understanding,  or  expectation   that  she  was   to   be 
paid  for  them. 

The  auditor  stated  the  following  additional  facts,  which  were 
proved  before  him,  the  report  having  been  recommitted  to  him 
for  that  purpose.  Mrs.  Gardner  for  some  time  before  Mr. 
Gardner's  death  was  in  a  feeble  state  of  health,  and  the  appellee 
had  the  charge  and  management  of  all  the  domestic  affairs  in 
the  house  in  the  same  manner  as  she  did  in  the  family  of  Mrs. 
Gardner,  after  Mr.  Gardner's  death.  Nancy  Purcell,  the  sister 
who  was  blind,  paid  $3  per  week  for  her  board  to  Mr.  Gardner 
until  his  death,  but  paid  nothing  for  board  after  his  death. 
The  appellee  went  to  live  in  the  family  of  Mr.  Gardner  upon 
his  invitation,  as  a  relative,  and  made  his  house  her  home  with- 
out any  agreement,  understanding,  or  expectation  that  she  was 
to  perform  any  services,  or  was  to  be  paid  for  her  services,  and 
she  never  received  or  claimed  any  compensation  of  him  or  his 
estate  therefor,  and  after  Mr.  Gardner's  death  she  continued 
to  reside  in  Mrs.  Gardner's  family  in  the  same  manner,  and  to 
take  the  same  charge  and  management  of  the  domestic  affairs 
that  she  did  before  ;  and  she  testified  in  her  examination,  that 
she  did  not  live  in  the  family  of  Mr.  Gardner,  or  of  Mrs.  Gard- 
ner, as  a  hired  maid  under  pay,  or  under  any  agreement,  under- 
standing, or  expectation  that  she  was  to  be  paid  for  her  ser- 
vices ;  but  after  Mrs.  Gardner  became  sick  and  unable  to  attend 
properly  to  her  household  affairs,  the  appellee  took  charge  of 
them,  and  so  continued  until  Mrs.  Gardner's  death,  and  Mrs. 
Gardner  told  her  two  or  three  years  before  her  death,  that  she 
ought  to  be  paid  for  her  services  ;  that  it  would  be  unreason- 
able for  her  to  do  so  much  work  as  she  had  done  in  their  family 
without  being  suitably  compensated  for  it,  and  that  Mrs.  Gard- 
ner and  others  advised  her  to  bring  in  a  bill  against  the  estate 
of  Mr.  Gardner  for  her  services,  but  she  declined  doing  it.  Mr. 
Gardner,  in  his  lifetime,  kept  a  man-servant  and  two  maid-ser- 
vants in  the  house,  and  other  occasional  servants,  and  after  his 
death  Mrs.  Gardner  kept  about  the  same  until  her  death.  Mrs. 
Gardner's  family  consisted  of  herself,  Susan  Purcell,  Nancy 
Purcell,  two  or  three  nieces  of  Mr.  Gardner,  and  the  servants 
and  a  good  deal  of  company,  consisting  of  relatives  and  others. 
Mr.  Gardner  was  a  hospitable  man,  and  entertained  a  good  deal 
of  company,  and  Mrs.  Gardner  kept  up  pretty  much  the  same 
style  and  manner  of  living  that  he  did.  Mrs.  Gardner  was  in 
feeble  health  much  of  the  time,  and  required  a  good  deal  of 
care  and  attention,  which  was  rendered  by  the  appellee  ;  and 
Nancy,  who  was  blind,  required  a  good  deal  of  waiting  upon, 
and  was  not  left  alone  ;  and  Susan   had  the  principal  charge  of 


6o4  HATCH   V.    PURCELL.  [CHAP.  I. 

Nancy  ;  but  the  nieces  waited  some  upon  Nancy,  when  Susan 
was  attending  upon  Mrs.  Gardner  in  her  sickness.  Mrs.  Gard- 
ner was  a  capable  woman,  and  though  in  feeble  health,  yet 
her  mind  remained  unimpaired  until  her  death.  Mrs.  Gard- 
ner had,  during  her  life,  tlie  income  of  all  Mr,  Gardner's  estate, 
consisting  of  $10,700  in  bank  stock,  $10,400  real  estate,  and  of 
about  $2000  in  furniture,  cash,  and  stock  on  the  farm.  Mrs. 
Gardner  lived  in  the  mansion-house,  but  it  did  not  appear  that 
she  received  much  income  from  the  other  real  estate.  The  ap- 
pellee also  testified  that  she,  Mrs.  Gardner,  and  Nancy  kept 
boarders  for  a  living,  previous  to  the  marriage  of  Mrs.  Gardner  ; 
that  she,  Mrs.  Gardner,  and  Nancy  had  property  in  common, 
aside  from  that  which  Mrs.  Gardner  received  from  Mr.  Gard- 
ner's estate  ;  that  Mrs.  Gardner  put  her  income  into  the  com- 
mon trunk,  and  each  one  took  out  what  she  wanted,  without 
keeping  any  account  of  what  was  put  in  or  taken  out  by  each  ; 
that  she,  Susan,  did  not  take  out  more  than  she  put  in  ;  that 
Mrs.  Gardner,  two  or  three  weeks  before  her  death,  sold,  through 
her  agent,  the  shares  in  the  State  Bank  in  Boston,  and  received 
therefrom  about  $5500  ;  that  she,  Susan,  knew  where  Mrs. 
Gardner  paid  out  about  $3000  and  over  from  that  money,  and 
did  not  know  what  became  of  the  rest  ;  that  the  money  was 
kept  in  a  trunk  in  the  house,  and  when  she  examined  the  trunk 
after  Mrs.  Gardner's  death,  there  was  no  money  there  ;  that 
Mrs.  Gardner  paid  her,  Susan,  $500,  and  Nancy  $500,  from  that 
money,  which  was  for  money  borrowed  of  them  ;  that  she, 
Susan,  purchased  some  railroad  stock  with  her  own  and  Nancy's 
money  about  the  time  she  received  it,  and  afterward  sold  the 
stock  and  let  the  money  with  other  money,  the  whole  amount- 
ing to  $2000  ;  that  she,  Susan,  had  other  property,  and  was  the 
sole  heir  of  Nancy,  who  died  two  or  three  years  after  Mis. 
Gardner  ;  that  she,  Mrs.  Gardner,  and  Nancy  owned  a  house 
in  common  in  Portsmouth,  which  they  sold  for  $1000,  and  let 
$800  of  the  money  in  1834  or  1835,  to  John  Gardner,  and  took  a 
mortgage  to  secure  the  payment  of  the  note  which  he  gave  for 
the  money,  no  part  of  which  note  has  been  paid  ;  that  the  note 
was  in  the  house  of  Mrs.  Gardner  at  the  time  of  her  death,  and 
she,  Susan,  received  it  afterward  ;  that  Mrs.  Gardner  told  her 
that  she  might  have  the  note,  and  that  everything  which  she 
left  was  hers,  but  she,  Susan,  never  paid  anything  for  it,  and 
the  note  was  not  delivered  to  her  by  Mrs.  Gardner,  but  was 
kept  there  in  the  house,  and  was  payable  to  and  owned  by  the 
three  together  ;  that  there  was  a  note  against  Mr.  Colby,  of 
Wendell,  N.  H.,  payable  to  Mrs.  Gardner,  but  part  of  which 
belonged  to  Susan,  and  she,  Susan,  after  Mrs.  Gardner's  death, 


SEC.  II^^J  HATCH    :■.    PURCELL.  605 

collected  the  note,  and  received  $240  on  it  ;  that  she  told  Mr. 
Hatch,  the  administrator  of  Mrs.  Gardner,  what  part  belonged 
to  the  estate,  and  what  to  her,  and  paid  over  to  Mr.  Hatch  the 
part  which  belonged  to  the  estate. 

Hah/i,  pro  se  (with  whom  was  Christie). 

Hackett  for  the  appellee. 

Gilchrist,  C.J.  The  case  finds  that  the  appellee  did  not  go 
to  Mrs.  Gardner's  house  under  any  understanding  or  agreement 
that  she  was  to  be  paid  for  her  services.  She  went  there  as  a 
relative,  and  not  as  a  hired  servant  to  receive  compensation, 
and  made  no  claim  against  Mr.  Gardner  or  his  estate  for  com- 
pensation. She  had  the  whole  charge  of  the  family  for  some 
years.  Mrs.  Gardner  told  her  two  or  three  years  before  her 
death,  and  at  other  times,  that  she  ought  to  be  paid  for  her 
services,  that  she  ought  not  to  do  so  much  work  without  com- 
pensation, and  requested  her  to  bring  in  a  bill  against  her  for 
her  services,  and  this  was  all  the  agreement  or  conversation 
they  had  on  the  subject. 

It  is  upon  this  state  of  facts  that  the  claim  now  before  us  is 
to  be  considered. 

It  has  been  settled  since  the  time  of  Hobart,  that  "  a  mere 
voluntary  courtesy  will  not  have  consideration  to  uphold  an 
assumpsit.''  Lampleigh  z;.  Brathwait,  Hob.  105  ;  Bartholemew  z/. 
Jackson,  20  Johns.  28.  For  it  is  not  reasonable,  it  has  been 
said,  that  one  man  should  do  another  a  kindness,  and  then 
charge  him  with  a  recompense.  Osborne  v.  Rogers,  i  Saund, 
264,  note  I.  A  consideration  executed  and  past  is  not  sufficient 
to  maintain  an  assumpsit,  unless  it  were  moved  by  a  precedent 
request,  and  so  laid.  But  where  a  party  derives  benefit  from 
the  consideration,  it  is  sufficient,  feecause  equivalent  to  a  pre- 
vious request.  Ibid.  A  request  may  be  implied  from  the 
beneficial  nature  of  the  consideration,  and  the  circumstances  of 
the  transaction.  Hicks  v.  Burhans,  10  Johns.  243.  And  it  is 
the  province  of  the  jury  to  determine  from  the  evidence  whether 
a  promise  can  be  inferred  or  not.  Oatfield  v.  Waring,  14  Johns. 
188.  Where  one  pays  a  sum  of  money  for  another,  without  any 
request,  and  the  other  afterward  agrees  to  the  payment,  this  is 
equivalent  to  a  previous  request  to  do  so.  The  benefit  to  the 
party,  connected  with  his  express  promise  to  pay,  must  be 
deemed  equivalent  to  a  previous  request.  Doty  v.  Wilson, 
14  Johns.  378  ;  Livingston  v.  Rogers,  i  Caines,  584-585. 

In  the  present  case  beneficial  services  were  performed  by  the 
appellee  for  Mrs.  Gardner,  and  she  recognized  them  as  such, 
and  requested  the  appellee  to  bring  in  a  bill  for  them.  Tliere 
is  then  evidence  from   which   both   a  previous   request  and  a 


6o6  BRADFORD   V.    ROULSTON.  [cHAP.  t. 

promise  may  be  implied,  and  we  think  the  decision  of  the  judge 
oi  probate  was  correct. 

The  point  that  the  claim  for  services  being  the  only  matter 
stated  as  a  reason  for  the  appeal,  is  the  only  one  which  the  ap- 
pellant has  a  right  to  contest,  has  been  settled  for  the  appellee 
in  the  case  of  Mathes  v.  Bennett,  adm'x,  supra^  p.  i88. 

Decree  affirmed. 


BRADFORD  v.   ROULSTON. 
In  the  Exchequer  of  Ireland,  June  12,  1858. 

[Reported  in  8  Irish  Conimoti  Law  Reports  468.] 

This  was  an  action  for  breach  of  a  contract,  by  the  defendant, 
to  pay  a  sum  of  ^55,  the  balance  of  the  purchase-money  of  a 
vessel  sold  by  the  plaintiff  to  a  third  person. 

The  summons  and  plaint  contained  four  special  counts,  and 
a  count  upon  an  account  stated.  No  question  arose  upon  the 
first,  third,  and  fifth  counts  ;  but  the  second  and  fourth,  which 
were  framed  upon  a  guarantee,  were  as  follows  :  Second  count. 
That  in  consideration  that  the  plaintiff,  at  the  express  instance 
and  request  of  the  defendant,  would  execute  to  one  James  Grib- 
ben  and  John  M'Teague  a  bill  of  sale  of  a  certain  vessel  of  the 
plaintiff,  the  defendant  contracted  and  agreed  with  the  plaintiff 
to  guarantee  the  payment  to  the  plaintiff,  on  the  day  following 
the  making  of  such  contract,  of  the  sum  of  ^55,  being  the  bal- 
ance of  the  purchase-money  payable  by  the  said  John  M'Teague, 
in  respect  of  such  bill  of  sale  ;  and  the  plaintiff  avers  that,  re- 
lying on  the  said  contract  and  agreement  by  the  defendant,  he 
did  execute  such  bill  of  sale,  and  did  perform  all  things  on  the 
part  of  him,  the  said  plaintiff,  in  relation  to  .the  said  contract  to 
be  performed  ;  but  the  plaintiff  avers  that  neither  of  them,  the 
said  James  Gribben  or  John  M'Teague,  or  the  defendant,  did 
pay  the  said  sum  of  ^55,  or  any  part  thereof,  on  the  day  afore- 
said or  since,  and  the  same  still  remains  wholly  unpaid  ;  of  all 
which  said  defendant  had  notice. 

Fourth  count.  That  it  had  been  agreed  between  the  plaintiff 
and  one  James  Gribben  and  John  M'Teague,  that  the  plaintiff 
should  execute  to  them  a  bill  of  sale  of  a  certain  other  vessel  of 
the  plaintiff,  for  the  price  or  sum  of  ^230  ;  and  the  plaintiff 
avers  that,  at  the  time  of  executing  such  last-mentioned  agree- 
ment, the  said  John  M'Teague  omitted  to  pay  over,  to  or  for 
the  plaintiff,  the  sum  of  ^55,  being  the  balance  of  the  purchase- 


SEC.  11^.]  BRADFORD   V.    ROULSTON.  607 

money  payable  by  the  said  John  M'Teague,  in  respect  of  such 
last-mentioned  agreement  ;  and  the  plaintiff  avers  that  he,  the 
said  plaintiff,  was  thereupon  unwilling  to  execute  such  bill  of 
sale  ;  and  the  plaintiff  says  tliat  defendant  then  expressly  re- 
quested the  plaintiff  to  execute  the  said  bill,  and  that,  in  conse- 
quence of  such  request,  the  plaintiff  did  actually  execute  the 
same  ;  and  the  plaintiff  avers  that  the  defendant  did,  afterward, 
in  consideration  of  the  plaintiff  having  so  executed  said  bill  of 
sale,  at  the  instance  and  request  of  the  defendant,  guarantee  to 
the  plaintiff  the  payment  to  him,  by  the  said  Jchn  M'Teague, 
of  the  sum  of  ^^55,  on  the  day  following  the  execution  of  such 
bill  ;  but  the  plaintiff  says  that  neither  the  said  John  M'Teague 
nor  the  defendant  did  pay  the  said  sum  of  ;!^55,  or  any  part 
thereof,  on  the  day  agreed  on  or  since,  but  same  still  remains 
wholly  unpaid  ;  of  all  which  the  defendant  had  notice. 

The  defendant,  by  his  defences,  traversed  the  making  of  the 
contract  stated  in  the  summons  and  plaint  ;  and  the  issues 
settled  upon  the  pleadings  were,  in  substance,  whether  the 
defendant  contracted  as  alleged  ? 

At  the  trial,  before  Ball,  J.,  at  the  spring  assizes  of  1858,  for 
the  county  of  Antrim,  a  letter  of  the  defendant,  which  it  ap- 
peared was  written  subsequently  to  the  transaction  stated  in  the 
pleadings,  was  relied  upon  by  the  plaintiff  as  a  guarantee  for 
the  payment  of  the  ^55.  The  jury,  upon  a  question  submitted 
to  them,  found  that  this  letter  was  a  guarantee  ;  and  his  Lord- 
ship thereupon  directed  a  verdict  for  the  plaintiff  on  the  second 
and  fourth  counts,  reserving  liberty  to  the  defendant  to  move 
to  have  a  verdict  entered  for  him  upon  the  second  count.  Upon 
the  other  counts  the  jury  found  a  verdict  for  the  defendant. 

R.  Andretvs  having,  on  the  part  of  the  defendant,  obtained  a 
conditional  order  to  have  a  verdict  entered  for  him  on  the  sec- 
ond and  fourth  counts,  or  that  judgment  upon  the  fourth  count 
should  be  arrested,  the 

Solicitor-General  2in^  F.  R.  Falkiner  now  showed  cause. 

R.  Andrews  and  M.  Harrison,  contra. 

A  full  statement  of  the  material  facts  of  the  case,  the  argu- 
ments of  counsel  and  the  cases  cited,  will  be  found  in  the  judg- 
ment of  the  Lord  Chief  Baron. 

Cur.  ad.  vult. 

PiGOT,  C.B.  By  the  conditional  order  in  this  case,  the  de- 
fendant seeks  to  have  a  verdict  entered  for  him  as  to  the  second 
and  fourth  counts  of  the  plaint,  or  (as  to  the  fourth  count)  that 
judgment  be  arrested.  It  appears  from  the  report  of  the  learned 
judge,  that  the  reservation  made  by  him,  and  the  objection  to 
the  evidence  on  which  it  was  founded,  applied  to   the  second 


6o8  BRADFORD   V.    ROULSTON.  [CHAP.  I. 

count  only.  The  questions  before  us,  therefore,  are,  whether 
the  verdict  shall  be  entered  for  the  defendant  on  the  issue  as  to 
the  second  count,  and  whether  judgment  shall  be  arrested  as  to 
the  fourth  ?  The  plaintiff  desiring  to  retain  his  verdict  on  both 
counts,  it  becomes  necessary  to  determine  both  questions.  The 
second  count  is  as  follows.  [His  Lordship  read  the  second 
count  and  proceeded.]  It  is  unnecessary  to  state  the  evidence 
in  detail,  in  result  it  established  the  following  facts  : 

The  defendant  was  a  ship-broker,  and  had  been  employed  by 
the  plaintiff  to  sell  a  vessel  called  the  Argo.  The  vessel  was 
sold  by  the  defendant  to  James  Gribben  and  John  M'Teague, 
for  ^230.  The  plaintiff  and  the  two  purchasers  met  the  de- 
fendant at  his  office.  The  bill  of  sale  had  been  then  prepared, 
and  the  register  of  the  vessel  was  ready  to  be  delivered.  Grib- 
ben produced  ^115,  M'Teague  produced  jQ6o  only,  and  the 
balance  of  ^55  not  being  forthcoming,  the  plaintiff,  at  the  re- 
quest of  the  defendant,  and  on  the  defendant's  promise  to  remit 
to  the  plaintiff  the  balance  of  ^55  on  the  following  day,  exe- 
cuted the  bill  of  sale,  and  delivered  it  and  the  register  to  the 
purchasers.  In  about  half  an  hour  after  all  this  took  place  the 
plaintiff,  who  had  left  the  defendant's  office,  returned  and  said 
"  he  would  feel  obliged  to  him"  (the  defendant)  "  to  commit 
his  promise  to  writing."  The  defendant  then,  at  once,  wrote 
the  following  document,  and  gave  it  to  the  plaintiff,  asking  him 
"  if  that  would  please  him  ?"  The  plaintiff  said  it  would,  and 
took  the  document.     It  was  in  these  terms  : 

"  L.  Derry,  December  15th,  1858. 
"  James  Bradford,  Esq.: 

"  Dear  Sir  :  You  are  paid  short,  by  Captain  Montague,  ;!^55, 
on  sale  of  Argo,  which  I  will  remit  to  you  to-morrow,  by  post. 
I  am,  dear  sir,  your  obedient  servant, 

"  A.    RoULSTON." 

"*  )  The  possession  of  the  vessel  was  not  delivered  to  the  pur- 
chasers until  the  following  day.  The  balance  of  ^55  was  never 
paid.  The  jury  found,  in  effect,  that  the  letter  was  a  guarantee 
to  pay  in  default  of  M'Teague.  On  this  finding  the  learned 
judge  directed  a  verdict  for  the  plaintiff,  on  the  second  count, 
reserving  leave  to  the  defendant  "  to  move,  in  regard  to  the 
second  count,  that  the  contract  entered  into  at  the  time  the  bill 
of  sale  was  signed,  not  having  been  then  in  writing,  a  verdict 
be  entered  on  the  second  count  for  the  defendant." 

The  question  upon  the  import  of  the  contract  was,  I  presume, 
left  to  the  jury,  by  the  consent  of   the  parties,  inasmuch  as  the 


SEC.  11^.]  BRADFORD   V.    ROULSTON.  609 

consideration  of  the  defendant's  undertaking  (which,  of  course, 
formed  part  of  the  contract)  was  not  expressed  in  the  writing. 
The  3d  section  of  the  19  &  20  Vic,  c.  97,  allows  the  considera- 
tion of  a  contract  to  answer  for  the  debt  of  another  to  be  proved 
by  parol,  and  upon  the  finding  of  the  jury,  and  upon  the  reser- 
vation made  of  the  point  saved  by  the  learned  judge,  it  must 
be  taken  that  the  consideration  was  proved,  as  laid.  Tlie  ques- 
tion which  we  have  to  determine  is,  whether  the  written  evi- 
dence of  the  undertaking,  coupled  with  the  parol  evidence  of 
the  consideration,  proved  by  legal  evidence,  within  the  Statute 
of  Frauds,  the  contract,  as  stated  in  the  second  count  ?  At  the 
time  the  bill  of  sale  was  executed,  there  was  no  contract  capable 
of  being  proved,  under  the  Statute  of  Frauds  ;  but  when  the 
action  was  brought  there  existed,  and  there  was  proved  at  the 
trial,  a  note  or  memorandum  in  writing  signed  by  the  proper 
party. 

It  was,  however,  argued  that  the  writing  having  been  given 
after  the  act  was  performed  (namely,  the  execution  of   the  bill 
of  sale),  which  was  the  consideration  of  the  executory  contract,  , 
and  after  the  making  of  the  executory  contract  itself,  the  proof  ,'| 
of  the  writing  not  only  does  not  support  the  statement  that  such  I 
a  contract  as  is  set  forth  in  the  second  count  had  legal  existence,  \ 
but  disproves  it. 

It  is  unnecessary  to  decide  here  how  this  argument  should  be 
dealt  with,  if  this  were  a  contract  under  the  13th  section  of  the 
Irish  Statute  of  Frauds,  7  W.  3,  c.  12  (corresponding  with  the 
i7lh  section  of  the  English  statute,  23  Car.  2,  c.  3).  This  is  a 
contract  under  the  2d  section  of  the  Irish,  analogous  to  the 
4th  section  of  the  English  Statute  of  Frauds,  which  does  not 
annul  the  parol  contract,  but  only  enacts  that  "  no  action  shall 
be  brought  whereby  to  charge  the  defendant,  upon  any  special ' 
promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
another  person,"  unless  the  "  agreement  upon  which  such 
action  shall  be  brought,  or  some  memorandum  or  note  thereof, 
shallbe  in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  j)erson  thereunto  by  him  lawfully  author- 
ized." It  has  been  repeatedly  held,  in  leference  to  contracts 
within  the  4th  section  of  the  English  statute,  that  they  were 
provable  by  writings  subsequently  signed,  and  recognizing  an 
agreement  previously  made.  In  Longfellow  v.  Williams'  the 
written  evidence  of  the  contract  offered  at  the  trial  was  a  letter 
written  to  a  third  person  by  the  defendant,  after  the  forbearance 
was  given,  which  was  the  consideration  for  the  alleged  promise. 
Lawrence,  J.,  in  admitting  the  evidence,  said  :  "  The  Statute 
»  2  Peake.  N.  P.  C,  225. 


6iO  BRADFORD   V.   ROULSTON.  [chap.  I. 

of  Frauds  requires  some  note  or  memorandum  in  writing  ;  such 
note  exists  in  the  present  case  ;  the  agreement  is  fully  proved 
by  it  ;  and  therefore  the  promise,  though  originally  by  parol, 
is  not  within  the  statute."  In  Shippey  v.  Derrison,'  Lord  Ellen- 
borough  pronounced  a  similar  rule  ;  and  in  each  of  the  cases  of 
Dobell  V.  Hutchinson,*  Owen  v.  Thomas,'  and  Hemming  v. 
Perry,*  the  writing  was  subsequent  to  the  parol  contract.  That 
a  letter  to  a  third  person  has  been  held  good  evidence  of  the 
contract  described  in  it,  is  stated  by  Lord  St.  Leonards  (Ven. 
and  Pur.,  p.  113),  citing  Welford  v.  Beazely^  and  Smith  zk 
Watson.*  The  4th  section  of  the  statute  was  recently  the  sub- 
ject of  full  consideration  in  the  case  of  Leroux  v.  Brown.'' 
There,  a  verbal  contract,  made  in  France,  was  proved  by  parol. 
By  the  law  of  France  such  a  contract  was  binding  in  that  coun- 
try ;  and  if  the  4th  section  of  the  Statute  of  Frauds  had  made 
such  a  contract  void,  and  had  thus  made  the  writing  one  of  the 
"  solemnities"  or  "  ceremonies"  of  the  contract,  the  law  of 
England,  by  the  comity  of  nations,  would  have  yielded  to  the 
law  of  France,  and  the  contract  would,  in  the  opinion  of  the 
Court,  have  been  provable  according  to  the  /ex  loci.  But  the 
Court  held  that,  by  the  4th  section  of  the  Statute  of  Frauds 
(differing  in  this  respect  from  the  17th  section),  the  contract 
was  not  to  be  treated  as  void,  if  made  in  England,  because  it 
was  not  evidenced  by  writing,  but  was  merely  rendered  incapa- 
ble of  proof  before  an  English  tribunal  ;  that  the  4th  section 
regulated  the  procedure,  and  that  consequently  the  proof  of  it 
must  be  regulated  by  the  lex  fori  and  not  the  lex  loci — by  the 
law  of  England,  where  the  action  was  tried,  and  not  by  the  law 
of  France,  where  the  contract  was  made.  Jervis,  C.J.,  in  giving 
judgment,  said  :  "  This,  therefore,  may  be  a  very  good  agree- 
ment, though,  for  want  of  compliance  with  the  requisites  of  the 
statute,  not  enforceable  in  an  English  court  of  justice." 

It  was  further  urged  in  this  case  that  the  executory  contract 
was  executed  by  the  party  suing,  and  consequently  the  alleged 
stipulated  benefit  was  gained  by  the  defendant,  or  the  stipu- 
lated prejudice  was  incurred  by  the  plaintiff  before  the  writing 
was  signed  ;  but  in  several  of  the  cases  which  I  have  cited  this 
very  circumstance  occurred,  and  it  must  occur,  in  many  in- 
stances, or  the  controversy  could  not  arise.  The  result  of  the 
authorities  is  that  if  the  contract  be  vouched  by  a  note  or  memo- 
randum in  writing,  signed  by  the  proper  party  (at  all  events,  if 

'  5  Esp.  190.  5  3  Atk.  503. 

«  3  Ad.  &  Ell.  355.  6  Bunb.  55. 

3  5  Myl.  &  K.  353.  '  12  C.  B.  801. 
*  2  M.  &  P.  375. 


SEC.  11^.]  BRADFORD   f.    ROULSTON.  6l  I 

SO  signed  before  the  action  is  brought),  that  will  be  sufficient 
proof  under  the  4th  section  of  the  English  (the  2d  section  of  the 
Irish)  Statute  of  Frauds.  I  abstain  from  giving  any  opinion  as 
to  the  effect  of  such  evidence,  under  similar  circumstances,  of 
a  contract  under  the  17th  section.  At  the  same  time  I  may 
observe  that,  in  several  cases  of  sales  of  goods,  under  the 
17th  section,  as  in  Saunderson  v.  Jackson,'  Jackson  v.  Lowe,* 
and  particularly  in  Schneider  v.  Norris,'  in  which  the  point 
seems  very  clearly  presented,  the  documents  constituting  the 
written  evidence  received  of  such  sales  were  signed  subse- 
quently to  the  contract. 

Since  the  foregoing  part  of  this  judgment  was  prepared,  I 
have  met  with  a  recent  case  in  the  Court  of  Chancery  in  Eng- 
land, Barkworth  7'.  Young,*  in  which  the  very  point  in  contro- 
versy upon  this  part  of  the  conditional  order  was  decided  by 
Vice-Chancellor  Kindersley,  holding,  that  where  there  was  a 
verbal  contract  made  in  consideration  of  marriage,  and  a  state- 
ment of  the  contract  was,  after  the  marriage,  made  in  an 
affidavit  signed  by  the  contracting  party,  the  statement  in  the 
affidavit  was  sufficient  evidence  of  the  contract,  under  the 
4th  section  of  the  Statute  of  Frauds.  It  is  singular  that,  in  his 
able  and  elaborate  judgment,  in  which  he  reviews  the  cases  in 
courts  of  equity,  he  does  not  advert  to  any  of  the  cases  decided 
at  law. 

The  defendant,  by  the  conditional  order,  also  seeks  to  arrest 
the  judgment  on  the  fourth  count.  The  plaintiff  obtained  a 
verdict  upon  the  issues  joined  on  that  count  ;  and  as  to  this,  no 
point  was  saved,  and  no  objection  was  made  at  the  trial.  The 
fourth  count  states  an  agreement,  by  which  the  plaintiff  agreed 
to  execute  a  bill  of  sale  of  a  vessel  to  Gribben  and  M'Teague 
for  ^^230.  That  at  the  time  of  executing  that  agreement 
M'Teague  omitted  to  pay  the  plaintiff  ;^55,  being  the  balance 
of  the  purchase-money  payable  on  that  agreement  ;  that  the 
plaintiff  being  unwilling  to  execute  the  bill  of  sale,  the  defend- 
ant expressly  requested  him  to  do  so,  and  that,  in  consequence 
of  that  request,  the  plaintiff  executed  the  bill  of  sale  ;  and  the 
count  then  states  that  "  the  defendant  did  afterward,  in  consid- 
eration of  the  plaintiff  having  so  executed  said  bill  of  sale,  at 
the  instance  and  request  of  the  defendant,  guarantee  to  the 
plaintiff  the  payment  to  him,  by  the  said  John  M'Teague,  of 
the  sum  of  ;£s5  o^i  the  day  following  the  execution  of  such  bill 
of  sale."  The  question  is  whether  this  count  is  bad  ;  the  con- 
tract alleged  being  upon  an  executed  consideration,   and   not 

'  2  Bos.  &  P.  238.  »  I  Bing.  9.  3  2  M.  &  S.  2S6. 

*  26  Law  Jour.,  N.  S.,  Ch.  153  ;  since  reported,  4  Drew.  i. 


> 


6l2  BRADFORD   V.    ROULSTON.  [CHAP.  I. 

being  a  contract  which,  from  such  consideration,  the  law  would 
imply. 

It  is  clearly  established  that  where  a  past  consideration — that 
is,  a  thing  previously  done  by  the  plaintiff  at  the  request  of  the 
'5  defendant — is  one  from  which  the  law  implies  a  promise,  an 
'i  express  promise  different  from,  or  in  addition  to,  that  which 
the  law  implies,  is  nudum  pactum,  on  the  ground  that  the  whole 
consideration  is  exhausted  by  the  promise  which  the  law  im- 
plies. Among  those  authorities  are  Brown  v.  Crump,'  Granger  z'. 
Collins,*  Hopkins  v.  Logan,'  Roscorla  v.  Thomas.*  And  this 
principle  of  law  was  recognized  and  approved  in  Kaye  v.  But- 
ton,* by  Tindal,  C.J.,  and  also  in  all  the  stages  of  Elderton  v. 
Emmens.*  This  is  in  exact  conformity  with  the  opinion  of 
Rolle,  expressed  at  the  end  of  his  report  of  Hodge  v.  Vavisor,' 
and  it  is  involved  in  the  decision  of  Docket  v.  Voyel."  But  it 
has  also  been  held,  in  a  long  series  of  decided  cases,  that  where 
,v,.  there  is  a  past  consideration,  consisting  of  a  previous  act  done 
"^  at  the  request  of  the  defendant,  it  will  support  a  subsequent 
promise  ;  the  promise  being  treated  as  coupled  with  the  pre- 
vious request.  The  leading  authority  for  this  proposition  is 
Lampleigh  v.  Brathwait.'  But  it  has  been  so  laid  down  in  a 
great  number  of  ancient  authorities.  In  Hunt  v.  Bate,'"  called 
in  several  of  the  books  Hunt  v.  Baker,  the  defendant's  servant 
was  arrested  and  imprisoned  in  the  Compter  in  London  for 
trespass.  The  plaintiff  and  another,  in  order  that  the  defend- 
ant's business  "  should  not  go  undone,"  bailed  the  servant. 
The  defendant  afterward  promised  the  plaintiff  to  save  him 
harmless  from  all  damages  and  costs  that  might  be  adjudged 
against  him  in  consequence  of  becoming  the  servant's  bail. 
The  plaintiff  brought  an  action  upon  this  promise  for  the  amount 
of  damages  he  was  compelled  to  pay  as  the  servant's  bail  ;  and 
after  verdict  for  the  plaintiff,  the  judgment  was  arrested  "  be- 
cause" (the  report  states)  "  there  is  no  consideration  whereof 
the  defendant  should  be  charged  for  the  debt  of  his  servant, 
unless  the  master  had  first  promised  to  discharge  the  plaintiff, 
before  enlargement  and  mainprise  made  of  his  servant  ;  for  the 
master  did  never  make  request  to  the  plaintiff  for  his  servant  to 
do  so  much,  but  he  did  it  of  his  own  head.  But,"  the  reporter 
adds,    "  in   another  like   action   on   the   case,    brought   upon   a 

I  I  Marsh.  567.  «  4  C.  B.  479  ;  S.  C,  6  C.   B.,  160  ; 

»  6  M.  &  W.  458.  S.C.  4  H.  L.  Cas.  624. 

3  5  M.  &  W.  241.  '  I  Rol.  Rep.  413. 

4  3  Q.  B.  234.  8  Cro.  Eliz.  885. 

'  7  Man.  &  G.  807  ;  S.  C,  8  Scott.  »  Hob.  105  ;  S.  C,  i  Sm.  L.  C.  118. 

N.  R.,  495.  '"  3  Dyer,  272^. 


SEC.  11^.]  BRADFORD   V.    ROULSTON.  613 

promise  to  pay^^ao,  made  to  the  plaintiff  by  the  defendant,  in 
consideration  tliat  the  plaintiff,  at  the  special  instance  of  the 
defendant,  had  taken  to  wife  the  cousin  of  the  defendant,  that 
was  a  good  cause,  although  the  marriage  was  executed  and  past 
before  the  undertaking  and  promise,  because  the  marriage  en- 
sued the  request  of  the  defendant."  Several  cases  are  referred 
to  in  the  notes  (ascribed  to  Treby,  C.J.),  which  are  appended 
in  3  Dyer,  p.  272,  to  the  report  of  the  case  of  Hunt  v.  Bate.  In 
two  of  these,  Halifax  v.  Barker'  and  Sandhill  v.  Jenny  (not  re- 
ported elsewhere),  it  is  stated  that  a  promise,  founded  upon  a 
previous  matter  done  by  the  plaintiff  at  the  defendant's  request 
was  held  insufficient  ;  but  such  a  promise  was  held  binding  in 
each  of  four  other  cases,  one  of  which  was  decided  by  all  the 
judges.  These  were  Rigge  z'.  BuUingham,^  Baxter  v.  Read  (not 
reported  elsewhere).  Gale  v.  Golsbury  (the  history  of  which  is 
given  in  the  note,  3  Dyer,  272^),  and  Sidnam  v.  Worthington.* 
Sidnam  v.  Worthington  was,  in  substance,  the  same  as  Hunt  v. 
Bate,  with  only  the  difference  that  the  plaintiff  became  bail  at 
the  request  of  the  defendant.  In  Gale  v.  Golsbury,  the  defend- 
ant requested  the  plaintiff  to  deliver  ;^6oo  worth  of  wine  to 
J.  S.;  and  the  defendant,  in  consideration  that  the  plaintiff,  at 
defendant's  request,  had  delivered  the  wine  to  J.  S.,  promised 
to  pa}^  him  if  J.  S.  did  not.  The  action  was  brought  for  ;^2oo 
remaining  unpaid  :  "  And  adjudged  by  all  the  judges  of  Eng- 
land that  an  action  lies  by  Gale  against  Golsbury."  If  the  law 
was  truly  declared  in  these  decisions,  they  are  direct  authorities 
for  the  plaintiff,  in  support  of  the  fourth  count  of  this  plaint. 

The  report  of  the  case  of  Hunt  v.  Bate,  in  Dyer,  is  referred 
to  and  recognized  in  a  variety  of  subsequent  cases,  as  laying 
down  a  principle  of  law  with  reference  to  past  considerations, 
by  which  those  decisions  were  influenced.  It  was  so  referred 
to  in  Sidnam  v.  Worthington,*  in  Marsh  &  Rainsford's  Case,^  in 
Dogget  V.  Dowell,"  in  Bosden  v.  Thinne,'  in  Jones  v.  Clarke,* 
in  Townsend  v.  Hunt,*  in  the  leading  case  of  Lampleigh  v. 
Brathwait,'"  and  in  Oliverson  v.  Wood."  The  principle  was  ap- 
plied in  many  of  the  old  authorities  collected  in  i  Rolle's  Abr., 
p.  II,  Action  sur  le  case,  Q.,  and  in  the  corresponding  title, 
I  Vin.  Abr.,  p.  29,  where  the  abstracts  of  the  cases  in  Rolle's 

'  Cro.  Eliz.  741.  '  Yel.  40,  1  Jac.  i. 

'  /dzd.  715.  8  2  Bui.  73,  II  Jac.  i. 

^  Ih'd.   42;   S.    C,  Godb.,33;  9  Cro.  Car.  408,  II  Car.  I. 

S.  C,  2  Leon.  224.  >o  i  Hob.  105  ;  S.  C,  1  Sm.  L.  C, 

^  Godb.  33,  27  Eliz.  119,  13  Jac.  i. 

*  2  Leon.  Ill,  30  Eliz.  "  3  Lev.  366. 

*  Owen.  144,  43  &  44  Eliz. 


6 14  BRADFORD   V.    ROULSTON.  [cHAP.  I. 

Abr.  are  translated,  and  several  others  are  added  :  placita, 
2,  3,  4,  5>  6,  7,  8,  i8,  19,  38,  40,  43,  49.  Also  in  Com.  Dig., 
Action  on  the  Case  upon  Assumpsit  (B  12),  where  the  cases  are 
distinguished  from  those  in  which  the  action  does  not  lie  col- 
lected at  (F  6).  Coming  down  to  later  times,  we  find  in  Hayes  v. 
Warren'  a  decision  which  has  been  repeatedly  treated  as  the 
ruling  modern  authority  for  the  proposition  that  assumpsit  will 
not  lie  upon  a  promise  for  a  past  consideration  unless  it  be  at 
the  request  of  the  defendant.  In  the  report  of  that  case  in 
2  Barnard,  p.  141,  the  Lord  Chief  Justice  (Raymond),  in  giving 
judgment,  referred  to  the  case  in  Cro.  Eliz.  p.  741  (Halifax  v. 
Barker,  one  of  the  cases  cited  in  the  note  to  3  Dyer,  p.  272). 
There  the  action  -wsis  assumpsit,  "  Whereas  in  consideration  that 
the  plaintiff,  by  the  defendant's  appointment,  and  for  his  debt, 
shortly  before  paid  to  R.  S.  ^60,  the  defendant  assumed  to  pay 
it  upon  request."  And  it  is  reported  in  Cro.  Eliz.  p.  741,  that 
the  Court  held  the  consideration  was  past,  and  not  sufficient. 
The  Lord  Chief  Justice,  according  to  the  report  of  Hayes  v. 
Warren, '^  states  :  "  They,"  the  Court,  "  did  agree  likewise,  that 
where  there  was  an  express  request  at  the  time  of  the  past  con- 
sideration being  performed  that  might,  in  all  cases,  be  sufficient 
to  support  a  subsequent  promise  ;  and,  therefore,  the  Chief  Jus- 
tice said  he  could  not  agree  the  case  cited  out  of  3  Cro.  p.  741, 
to  be  law."  And,  unquestionably,  that  case  is  directly  op- 
posed (if  it  was  not  so  decided  upon  the  term  "  appointment," 
as  not  indicating  request)  to  the  express  decisions  in  the  same 
book,  Cro.  Eliz.  pp.  42,  59,  807.  It  is  clear  that  the  Court,  in 
Hayes  v.  Warren,  affirmed  the  principle  of  law  laid  down  in 
Hunt  V.  Bate  and  Lampleigh  v.  Brathwait.  And  Wilmot,  J., 
who,  in  Pillans  v.  Van  Mierop,^  quarrels  with  the  decision  in 
Hayes  v.  Warren,  as  too  much  restricting  contracts,  treats  it 
,  as  "  now  settled,  that  where  the  act  is  done  at  the  request  of 
the  person  promising,  it  will  be  a  sufficient  foundation  to  graft  a 
t  promise  upon." 

This  rule  of  law  was  the  foundation  of  express  decision  in 
Wilkinson  v.  Oliveira,*  It  was  recognized  in  Lord  Denman's 
judgment  in  Eastwood  v.  Kenyon,^  in  that  of  Tindal,  C.J.,  in 
Kaye  v.  Dutton,*  and  in  that  of  Littledale,  J.,  in  Payne  v.  Wil- 
son.'    But  in  Roscorla  v.  Thomas'  Lord  Denman  intimated  an 

•  2  Str.  933  :  S.  C,  Ke.  117  ;  S.  C,  =  „  Ad.  &  Ell.  452. 

2  Bar.  140,  5  G.  2.  67  Man.  &  G.   815,  816  ;   S.  C,  8 

*  2  Barnard,  141.  Scott,  502. 

3  3  Burr.  1671.  '  7  B.  &  C.  427. 

4  I  Bing.  N.  C.,490  ;  S.  C,  i  Scott,  *  3  Q.  B.  234, 
461. 


SEC.  11^.]  BRADFORD   V.    ROULSTOX.  615 

Opinion  which,  in  one  construction  of  the  language,  would  seem 
to  lay  down,  as  a  general  rule  of  law,  that  a  past  or  executed 
consideration  will  support  no  promise  save  one  which  the  law 
would  imply  from  it  ;  that  proposition  importing,  not  merely 
that  where  a  promise  would  be  implied  by  law,  and  would 
therefore  exhaust  the  consideration,  no  other  express  promise 
will  be  sustained  by  the  same  past  consideration,  but  further, 
that  no  promise  at  all  will  be  sustained  by  such  consideration, 
unless  a  promise  would  be  implied  from  it  by  law,  and  then 
only  such  promise  as  would  be  so  implied. 

The  proposition,  in  that  extended  sense,  has  never  been  the 
subject  of  express  decision.     It  did  not  arise  in  Brown  v.  Crump,* 
in  Hopkins  v.  Logan,"  in  Granger  v.   Collins,^  in  Eastwood  v. 
Kenyon,*   in   Beaumont  v.    Reeve, ^   in   Jackson    v.    Cobbin,*  in 
Lattimore  v.  Garrard,'  in   Elderton  v.    Emmens,*  in  any  of   its 
stages,  nor  even  in  Roscorla  v.  Thomas.     In  each  of  these  cases 
(except  Beaumont  v.  Reeve),  the  law  implied,  from  the  consid- 
eration, a  promise  which  exhausted  it.     In  Elderton  v.  Emmens 
the  Court  of  Common  Pleas  held  that  the  express  promise  went 
beyond  the  implied  one,  and  therefore  could  not  be  sustained. 
The  Court  of  Exchequer  Chamber  and  the  House  of  Lords  held 
that  the  express  promise  was  only  equivalent  to  the  implied 
one,  and  they  therefore  sustained  it.     In  Beaumont  v.   Reeve 
the  declaration  stated,  in  effect,  that  the  defendant  had  seduced 
the  plaintiff,  and  thereby  rendered  her  incapable  of  procuring 
an  honest  livelihood  ;  that  they  had  parted  and  agreed  to  live 
separate,  and  to  have  no  further  immoral  intercourse  together  ; 
and  that  as  a  compensation  for  the  injury  which  the  defendant 
had  done  to  the  plaintiff,  and  in  consideration  of  the  premises, 
he  undertook  and   promised  to  pay  her  a  yearly  sum  of  ;^6o. 
There  was  in  that  case  plainly  no  consideration  for  the  promise, 
but  the  moral  obligation  to  repair  a  wrong.     No  precedent  re- 1 
quest  or  solicitation,  either  express  or  involved  in  the  fact  oiW 
seduction,  could  have  created  any  sufficient  consideration  ;  for' 
the  immoral  intercourse,  with  or  without  an  express  request, 
could  not  have  formed  any  legal  consideration,  either  executory 
or  executed  for  a  valid  promise.     It  was  therefore  within  the 
direct  authority  of  Eastwood  v.  Kenyon,'  in  which,  on  a  review 
of  the  authorities,  it  was  determined  that  a  mere  moral  obliga- 
tion will  not  support  an  assumpsit ;  and  this  appears  to  be  the 

'  I  March.  567.  •  8  M.  &  W.  790. 

«  5  M.  &  W.  241.  '  I  Exch.  809. 

3  6  M.  &  W.  458.  8  4  C.  B.  479  ;  S.  C,  6  C.  B.  160  ; 

*  II  Ad.  &  Ell.  438.  4  H.  L.  Cas.  624. 

»8Q.  B.  483.  9  II  Ad.  &  Ell.  438. 


6l6  BRADFORD   V.    ROULSTON.  [CHAP.  I. 

ground  of  the  judgments  in  Beaumont  v.  Reeve,  of  Patteson 
and  Coleridge,  JJ.  Lord  Denman,  in  Beaumont  v.  Reeve,  ex- 
pounds his  own  meaning  of  the  proposition  which  he  stated  in 
Roscorla  v.  Thomas  thus  :  "  The  result  is,  that  an  express 
promise  cannot  be  supported  by  a  consideration  from  which  the 
law  could  not  imply  a  promise,  except  where  the  express  prom- 
ise does  away  with  a  legal  suspension  or  bar  of  a  right  of  action 
which,  but  for  such  suspension  or  bar,  would  be  valid  ;"  a 
proposition  which,  by  the  generality  of  its  terms,  would  exclude 
the  case  of  a  promise  of  a  defendant,  founded  on  a  previous 
benefit  rendered  to  the  defendant  at  his  request.  I  am  not  sure 
whether  Parke,  B.,  in  Elderton  v.  Emmens'  or  in  Garrard  v. 
Latimore,^  and  Maule,  J.,  in  Emmens  v.  Elderton^  adopted  the 
proposition  in  that  extended  sense,  or  meant  to  confine  it,  as  it 
appears  to  have  been  confined  by  Lord  Truro,  in  4  Com.  B., 
p.  494,  and  4  H.  of  L.  Cas.,  p.  672  ;  by  Maule,  J.,  in  4  Com.  B., 
p.  496  ;  by  Cresswell,  J.,  in  4  Com.  B.,  p.  496  ;  and  Cromp- 
ton,  J.,  in  4  H.  of  L.  Cas.,  p.  439  ;  and  as  Tindal,  C.J.,  appears 
to  have  done  in  Kaye  v.  Dutton,*  to  cases  where  the  considera- 
tion is  one  from  which  the  law  does  imply  a  promise,  which 
therefore  exhausts  the  consideration.  The  reporter  certainly 
understood  the  language  used  in  4  Com.  B.,  p.  496,  to  be  so 
confined,  as  appears  from  his  note  at  that  page  of  his  report  ; 
and  it  is  perfectly  plain  that  the  decision  or  the  judgment  in 
which  it  was  pronounced,  in  Eastwood  v.  Kenyon,  or  the  note 
to  Wennall  v.  Adney,^  to  both  of  which  Lord  Denman  refers  in 
his  judgment  in  Roscorla  v.  Thomas,  give  no  sanction  to  a 
denial  of  the  rule  of  law  laid  down  in  Hunt  v.  Bate  and  Lamp- 
leigh  V.  Brathwait.  Lord  Denman,  in  Eastwood  v.  Kenyon, 
not  only  refers  to  that  rule,  and  to  both  those  cases  as  establish- 
ing it,  but  refers  also  to  Townsend  v.  Hunt,*  as  recognizing  and 
acting  on  the  distinction  which  those  cases  establish  and  ex- 
plain, between  a  past  consideration  with,  and  a  past  considera- 
tion without,  a  precedent  promise  ;  and  he  precedes  those  refer- 
ences by  the  following  passage  :  "In  holding  this  declaration 
bad,  because  it  states  no  consideration  but  a  past  benefit,  not 
conferred  at  the  request  of  the  defendant,  we  conceive  that  we 
are  justified  by  the  old  common  law  of  England."  In  the  note 
to  Wennall  v.  Adney,  the  case  of  Lampleigh  v.  Brathwait,  and 
the  distinction  there  explained,  is  explicitly  stated,  without  any 
denial  of  its  authority. 

I  have  thought  it  necessary  to  enter  into  this  detailed  discus- 
sion, because  the  language  of  the  judges,  in  some  of  the  cases 

1  6  C.  B.  174.  3  4  H.  L.  Cas.  65.S,  '-  3  Bos.  &  P.  249. 

'  I  Exch.  809.  *  7  Man.  &  G.  815-816.  «  Cro.  Car.  408. 


SEC.  II//.]  WATSON   V.  TURNER   ct  al.  617 

I  have  cited,  is  so  general  that  it  would  seem  to  sustain  the 
objection  to  the  fourth  count  of  the  plaint  before  us.  It  is  very 
much  to  be  lamented  that  the  language  so  used  (as  reported) 
was  not  accompanied  with  such  explanation  as  would  have 
clearly  shown  whether  the  learned  judges  intended  to  declare 
that  in  their  opinion  the  rule  laid  down  in  Hunt  v.  Bate,  Lamp- 
leigh  V.  Brathwait,  and  Wilkinson  v.  Oliveira,  and  in  the  multi- 
tude of  other  decided  cases  which  I  have  mentioned,  or  the 
exposition  of  that  rule  in  Kaye  v.  Dutton,  was  or  was  not  law. 
In  no  one  of  the  cases,  in  which  the  language  to  which  I  have 
referred  was  used  by  them,  was  any  one  of  those  authorities 
named  ;  in  no  one  was  it  stated  that  the  rule  which  those 
authorities  expounded  and  applied  was  to  be  no  longer  treated 
as  a  rule  of  law.  I  own  it  appears  to  me  that  a  rule  so  well  and 
so  long  established,  if  inexpedient,  ought  to  be  abrogated,  if  it 
all,  by  an  act  of  the  Legislature,  or,  if  otherwise  reversed,  ought 
to  be  reversed  only  by  the  highest  appellate  tribunal  ;  especially 
when  the  change  would  have  the  effect  of  narrowing  the  sphere 
within  which  mankind  shall  be  permitted  to  bind  each  other  by 
their  deliberate  dealings. 

Notwithstanding,  then,  the  expressions  of  opinion  of  the 
learned  judges  which  I  have  referred  to,  unnecessary  for  de- 
termining the  questions  judicially  before  them  (even  if  they 
conveyed  the  more  extended  meaning  on  which  I  have  com- 
mented), I  cannot,  in  deference  to  those  expressions  of  opinion, 
pronounce  a  judgment  reversing  a  series  of  decisions  made  by 
successive  judges,  and  establishing  a  rule  of  law  that  has  been 
understood  to  prevail  for,  certainly,  more  than  two  centuries. 

We  refuse  to  arrest  the  judgment  on  the  fourth  count,  or 
enter  a  verdict  on  the  second  ;  and  our  order  will  therefore  be, 
to  allow  the  cause  shown  against  the  whole  of  this  conditional 
order. 


{Ji)    Moral  obligation  as  a  consideration. 

WATSON  V.  TURNER  et  al. 

In  the  Exchequer,  Trinity  Term,  1767. 

[Reported  z'ti  Butler's  Nisi  Prius  129.] 

An  action  was  brought  by  an  apothecary  against  the  over- 
seers of  a  parish  for  the  cure  of  a  pauper,  who  boarded  with 
her  son  out  of  the  parish,  under  an  agreement  made  with  him 
by  the  defendant  Turner,  who  was  the  only  acting  overseer  of 
the  parish.     The  pauper  was  suddenly  taken  ill,  and   her  son 


6l8  ATKINS   AND   WIFE   V.    HILL.  [CHAP.  I. 

called  in  the  plaintiff,  who  had  attended  her  for  four  months, 
and  cured  her.  After  the  cure  Turner  was  applied  to,  and 
promised  to  pay  the  plaintiff's  bill.  It  was  held  that  though 
there  was  no  precedent  request  from  the  overseers,  yet  the 
promise  was  good  notwithstanding  the  Statute  of  Frauds,  for 
overseers  are  under  a  moral  obligation  to  provide  for  the  poor. 
Secondly,  that  as  Turner  was  the  only  acting  overseer,  the  other 
was  bound  by  his  promise,  Watson  v.  Turner  et  al.,  in  Scacc.  T. 
7  Geo.  III. 


ATKINS  AND  WIFE  v.   HILL. 

In  the  King's  Bench,  Easter  Term,  1775. 

[Reported  in  Cowper  284.] 

In  assumpsit  the  plaintiffs  declared  against  Charles  Hill,  being 
in  the  custody,  etc.,  for  that,  whereas  James  Clarke,  etc.,  by 
his  last  will,  etc.,  did  give  and  bequeath  to  the  plaintiff's  wife 
the  sum  of  ;!^6o,  etc.,  and  of  his  last  will  and  testament  made 
the  said  Charles  Hill  sole  executor,  etc.,  and  the  said  Charles 
Hill  took  upon  himself  the  burden  and  execution  of  the  said 
will.  And  the  said  N.  and  A.  further  say  that  divers  goods  and 
chattels,  etc.,  afterward,  etc.,  came  to  the  hands  of  the  said 
Charles  Hill  as  executor  of  the  said  James  Clarke,  which  said 
goods  and  chattels  were  more  than  sufficient  to  satisfy  and  pay 
all  the  just  debts  and  legacies  of  the  said  James  Clarke,  etc., 
of  which  the  said  Charles  Hill  then  and  there  had  notice.  By 
reason  of  which  said  premises  the  said  Charles  Hill  became 
liable  to  pay  to  the  said  N.  and  A.  the  said  sum  of  ^60,  and 
being  so  liable,  he,  the  said  C,  in  consideration  thereof,  after- 
ward, etc.,  undertook  and  faithfully  promised  to  pay  to  them 
the  said  sum  of  j[^(io  whenever,  etc. 

To  this  declaration  the  defendant  demurred  generally. 

Le  Blanc  in  support  of  the  demurrer. 

Buller,  contra,  for  the  plaintiff. 

Lord  Mansfield.  The  argument  in  support  of  this  demurrer 
has  proceeded  upon  supposing  a  getieral  question,  which  is  not 
at  all  involved  in  this  case  ;  and  agitating  that  general  ques- 
tion, as  if  this  were  a  declaration  upon  the  ground  of  the  will 
only  and  nothing  else.  If  it  were  a  general  question,  I  should 
not  immediately  give  my  opinion.  The  objection,  however, 
that  is  taken  upon  the  supposition  of  its  being  so,   is  that  a 


SEC.  11/^]  ATKINS   AND    WIFE   7'.    HILL.  619 

legacy,  arising  out  of  a  will  of  personal  estate,  being  a  testa- 
mentary matter,  the  cognizance  of  it  belongs  peculiarly  and 
exclusively  to  the  ecclesiastical  court  ;  and  consequently  that  the 
courts  of  common  law  have  no  jurisdiction.  If  that  proposition 
were  true,  the  objection  would  hold  equally  against  the  juris- 
diction of  the  courts  of  equity.  For  it  is  plain  that  where  the 
cognizance  of  any  matter  is  the  peculiar  province  of  a  particular 
forum  all  other  courts  are  excluded.  For  instance,  a  court  of 
equity  can  no  more  try  the  validity  of  a  will  of  personal  estate 
or  the  validity  of  a  marriage  than  this  Court.  The  judge  of 
the  admiralty  has  cognizance  of  the  question  of  prize.  A  court 
of  equity  is  as  much  excluded  as  a  court  of  law  ;  and  many 
other  instances  might  be  put. 

It  is  objected  that  this  Court  cannot  compel  a  legatee  to  re- 
fund if  debts  should  appear.  In  that  case  he  would  be  liable  to 
refund  whether  he  gave  security  or  not,  for  it  would  be  the  case 
of  payment  upon  a  mistaken  ground.  But  if  justice  required 
it  this  Court  would  make  the  plaintiff's  giving  an  indemnity  a 
condition  of  his  recovering.  There  are  many  cases  where  this 
Court  has  made  parties  give  indemnity. 

It  is  true  that  the  law  concerning  legacies  was  made  in  the 
ecclesiastical  court.  The  authority  of  the  Roman  law  was  re- 
ceived. The  opinions  of  doctors  and  foreign  authors  upon  the 
civil  law  were  quoted  and  respected. 

When  the  courts  of  equity  held  plea  of  legacies  as  incident  to 
discovery  and  account,  they  adopted  the  whole  system  by  which 
legacies  were  governed  in  the  ecclesiastical  court.  In  I'ke  man- 
ner the  courts  of  law,  in  the  exercise  of  a  concurrent  jurisdic- 
tion, would  adopt  the  same  rules. 

But  a  legatee  who  sues  at  law  must  clearly  prov.  that  the 
defendant  has  received  russets,  which  cannot  be  done,  except  in 
a  case  so  clear  as  not  to  admit  of  litigation.  In  this  .  aspect  tht 
discovery  and  account  giver  in  a  court  of  equity  is  so  preferable 
a  remedy  that  it  has  drawn  all  such  suitors  thither  ;  and  there- 
fore, in  fact,  there  is  scarce  an  instance  of  a  legatee  attempting 
to  sue  at  law.  In  clear  cases  the  legacies  are  paid,  in  doubtful 
the  relief  given  by  a  court  of  equity  is  easier  and  better.  But 
upon  principles,  if  the  question  is  constitutionally  appropriated  to 
the  ecclesiastical  jurisdiction,  it  must  equally  exclude  the  courts 
of  equity  as  well  as  law.  I  have  mentioned  thus  much  by  way 
of  observation  upon  the  objection  that  has  been  made  as  sup- 
posing this  a  case  within  the  general  question  ;  which,  however, 
as  I  said  before,  it  is  not. 

This  is  a  case  in  which  the  declaration  particularly  states  that 
assets  have  been  received  by  the  defendant,  the  executor,  more 


620  ATKINS   AND    WIFE   V.    HILL.  [CHAP.  I. 

than  sufficient  to  pay  all  the  testator's  debts  and  legacies.  If 
so,  it  most  undoubtedly  must  be  taken  upon  the  pleadings  that 
there  was  sufficient  to  discharge  the  funeral  expenses,  because 
they  are  payable  first  ;  consequently  if  there  was  less  than  the 
amount  of  them  there  could  not  be  sufficient  to  discharge  the 
debts  and  legacies.  The  declaration  then  goes  on  to  state  that 
in  consideration  of  there  being  full  sufficient  assets  as  aforesaid, 
the  defendant  undertook  and  promised  to  pay  the  plaintiff  his 
legacy.  No  doubt,  then,  but  at  any  time  after  an  executor  has 
assented  the  property  vests,  and  if  it  be  a  pecuniary  legacy,  an 
action  at  law  will  lie  for  the  recovery  of  it.  Formerly  upon  a 
bill  being  filed  in  Chancery  against  an  executor,  one  part  of  the 
prayer  of  it  was  that  he  should  assent  to  the  bequest  in  his 
testator's  will.  If  he  had  assets  he  was  bound  to  assent  ;  and 
when  he  had  assented,  the  legacy  became  a  demand  which  in 
law  and  conscience  he  was  liable  to  .pay.  But  in  the  present 
case  there  is  not  only  an  assent  to  the  legacy,  but  an  actual pro?n- 
ise  and  undertaking  to  pay  it,  and  that  promise  founded  on  a 
good  consideration  in  law,  as  appears  from  the  cases  cited  by 
Buller,  particularly  the  case  of  Camden  v.  Turner,*  where  ac- 
knowledgment by  an  executor,  "  that  he  had  enough  to  pay," 
was  held  a  sufficient  ground  to  support  an  assumpsit.  Here  the 
defendant  by  his  demurrer  admits  he  had  sufficient  to  pay, 
therefore  this  is  not  the  case  that  Le  Blanc  has  been  arguing 
upon,  but  it  is  the  case  of  a  promise  made  upon  a  good  and 
valuable  consideration,  which  in  all  cases  is  a  sufficient  ground 
to  support  an  action.  It  is  so  in  cases  of  obligations  which 
would  otherwise  only  bind  a  man's  conscience,  and  which,  with- 
out such  promise,  he  could  not  be  compelled  to  pay.  For  in- 
stance, where  an  infant  contracts  debts  during  his  minority,  if 
after  he  comes  of  age  he  consents  to  pay  them  an  action  lies. 
So  a  conveyance  executed  by  an  infant,  which  he  was  compel- 
lable to  do  by  equity,  is  a  good  conveyance  at  law.  Co.  Lit. 
Attornment,  315a.  In  this  case  the  promise  is  grounded  upon 
a  reasonable  and  conscientious  consideration — namely,  that  the 
defendant  had  assets  to  discharge  the  legacy.  If  so,  he  was 
compellable  in  a  court  of  equity  or  in  the  ecclesiastical  court  to 
pay  it.  I  give  my  opinion  upon  this  case  as  it  stands — that  is, 
that  it  is  an  express  promise  made  upon  a  good  and  sufficient 
consideration.      Vide  the  next  case. 

The  three  other  judges  concurred. 

Per  Curiam.     Judgment  for  the  plaintiff. 

Le  Blanc  then  moved  for  liberty  to  withdraw  the  demurrer 
and  plead  the  general  issue,  but  the  Court  refused  it. 

'  Sittings  after  Trinity  Term.     5  Geo.  i.  C.  B.  coram.  King,  C.J. 


SEC.  u/i.]  TRUEMAN   V.    FENTON.  621 

TRUEMAN  7'.   FENTON. 

In  the  King's  Bench,  January  28,  1777. 

{Reported  in  Cow  per  544.  J 

This  was  an  action  on  a  promissory  note  bearing  date  Feb- 
ruary nth,  1775,  payable  to  one  Joseph  Trueman  (the  plaintiff's 
brother)  three  months  after  date  for  jC^d'j  and  endorsed  by  him 
to  the  plaintiff. 

The  declaration  contained  other  counts  for  goods  sold,  money 
had  and  received,  and  on  an  account  stated.  The  defendant 
pleaded,  first,  nan  assutnpsii.  Secondly,  "  That  on  January  19th, 
1775,  he  became  bankrupt,  and  that  the  debt  for  which  the  said 
note  was  given  was  due  to  the  plaintiff  before  such  time  as  he 
the  defendant  became  bankrupt,  and  that  the  note  Wr<s  given  to 
Joseph  Trueman  for  the  use  of  and  for  securing  to  the  said 
plaintiff  his  debt  so  due."  The  cause  was  tried  before  Lord 
Mansfield  at  the  sittings  after  Michaelmas  Term,  1776,  when 
the  jury  found  a  verdict  for  the  plaintiff,  damages  J[^i2  \2s. 
costs  40i'.  subject  to  the  opinion  of  the  Court  upon  a  special  case 
stating  the  answer  of  the  plaintiff  in  this  action  to  a  bill  filed 
against  him  in  the  Exchequer  by  the  present  defendant  for  a 
discovery  of  the  consideration  of  the  note,  the  substance  of 
which  was  as  follows  :  "  That  on  December  15th,  1774,  the  de- 
fendant, Fenton,  purchased  a  quantity  of  linen  of  the  plaintiff, 
Trueman,  and  it  being  usual  to  abate  ^5  per  cent  to  persons  of 
the  defendant's  trade,  the  price,  after  such  abatement  made, 
amounted  to  ;^i26  i8.r.  That  at  the  time  of  the  sale  it  was 
agreed  that  one  half  of  the  purchase-money  should  be  paid  at 
the  end  of  six  weeks,  and  the  other  half  at  the  end  of  two 
months.  And  in  consideration  thereof  the  plaintiff,  Trueman, 
drew  two  notes  on  the  defendant  for  J[,(y2>  9^-  each,  payable  to 
his  own  order  at  six  weeks  and  two  months  respectively.  That 
the  defendant  accepted  the  notes,  and  thereupon  the  plaintiff 
gave  him  a  discharge  for  the  sum.  He  then  denied  that  he  had 
proved  or  claimed  any  debt  or  sum  of  money  under  the  com- 
mission, but  set  forth  that  he  acquainted  the  defendant  he  was 
surprised  at  his  ungenerous  behavior  in  purchasing  so  large  a 
quantity  of  linen  o(  him  at  the  eve  of  his  bankruptcy,  and  in- 
formed him  he  had  paid  away  the  above  two  notes,  upon  which 
the  defendant  pressed  him  to  take  up  the  two  notes  and  pro- 
posed to  give  him  a  security  for  part  of  the  debt.  That  after- 
ward, on  February   nth,  1775,  the  defendant  called  upon   the 


622  TRUEMAN   V.    FENTON.  [cHAP.  I. 

plaintiff,  and  voluntarily  proposed  to  secure  to  him  the  payment 
of  ^67  in  satisfaction  of  his  debt,  if  he  would  take  up  the  two 
notes  and  cancel  or  deliver  them  up  to  the  defendant.  That 
the  plaintiff  agreed  to  accept  this  proposal  with  the  approbation 
of  his  attorney,  and  desired  the  note  to  be  made  payable  to  his 
brother,  Joseph  Trueman,  or  order  three  months  after  date. 
That  he  took  up  the  two  acceptances  and  delivered  them  to 'the 
defendant  to  be  cancelled,  and  accepted  the  above  note  for  ^67 
in  satisfaction  and  discharge  thereof.  That  a  commission  of 
bankruptcy  issued  against  the  defendant  on  January  rpth,  1775, 
and  that  the  bankrupt  obtained  his  certificate  on  April  17th 
following."  The  question  reserved  was.  Whether  the  facts 
above  stated  supported  the  merits  of  the  defendant's  plea  ?  If 
they  did  not,  then  a  verdict  was  to  be  entered  for  the  plaintiff 
on  the  general  issue.  But  if  the  merits  of  the  second  plea  sup- 
ported the  defendant's  case,  then  a  verdict  was  to  be  entered 
for  the  defendant  on  that  plea. 

Bulk)-  for  the  plaintiff. 

Davenport^  contra^  for  the  defendant. 

Lord  Mansfield.  The  plea  put  in  in  this  case  is  that  the 
debt  was  due  at  the  time  of  the  act  of  bankruptcy  committed, 
and  on  that  plea,  in  point  oi  form,  there  was  a  strong  objection 
made  at  the  trial,  that  the  allegation  was  not  strictly  true, 
because  at  the  time  of  the  sale  credit  was  given  to  a  future  day, 
which  day,  as  it  appeared  in  evidence,  was  subsequent  to  the 
act  of  bankruptcy  committed.  To  be  sure  on  \\\q  form  of  the 
plea  the  defendant  must  fail.  But  I  never  like  to  entangle 
justice  in  matters  of  form,  and  to  turn  parties  round  upon  friv- 
olous objections  where  I  can  avoid  it.  It  only  tends  to  the  ruin 
and  destruction  of  both.  I  put  it,  therefore,  to  the  counsel  on 
the  part  of  the  plaintiff  to  give  up  the  objection  in  point  of 
form,  and  to  take  the  opinion  of  the  Court,  whether  according 
to  the  facts  and  truth  of  the  case,  the  defendant  could  have 
pleaded  his  certificate  in  bar  of  tlie  debt  in  question  ;  and  in 
case  they  had  refused  to  do  so,  I  should  have  left  it  to  the  jury 
upon  the  merits.  The  counsel  for  the  plaintiff  very  properly 
gave  up  the  point  of  form.  The  question,  therefore,  upon  the 
case  reserved  is  worded  thus  :  Whether  the  facts  support  the 
merits  of  the  defendant's  plea — that  is,  whether  on  the  merits 
of  the  case  properly  pleaded  the  certificate  of  the  defendant 
would  have  been  a  bar  to  the  plaintiff's  action  ?  Now  in  this 
case  there  is  no  fraud,  no  oppression,  no  scheme  whatsoever  on 
the  part  of  the  plaintiff  to  deceive  or  impose  on  the  defendant  ; 
and  as  to  collusion  with  respect  to  the  certificate,  where  a  cred- 
itor exacts  terms  of  his  debtor  as  the  consideration  for  signing 


SEC.  ll//.]  TRUEMAX   t'.    FEXTON.  623 

his  certificate,  and  obtains  money  or  a  part  of  his  debt  for  so 
doing,  the  assignees  may  recover  it  back  in  an  action.  But 
that  is  not  the  case  here.  So  far  from  it,  the  transaction  itself 
excluded  the  plaintiff  from  having  anything  to  do  with  the 
certificate.  No  man  can  vote  for  or  against  the  certificate  till 
he  has  proved  his  debt.  Heie  the  plaintiff  delivers  up  the  two 
drafts  bearing  date/r/c;/-  to  the  act  of  bankruptcy,  and  by  agree- 
ment accepts  one  for  little  more  than  half  their  amount,  bearing 
date  after  the  commission  of  bankruptcy  sued  out.  Most  clearly 
therefore  he  could  not  have  proved  that  note  under  the  commis- 
sion, and  if  not,  he  could  have  nothing  to  do  with  the  certificate. 
That  brings  it  to  the  general  question  whether  a  bankrupt, 
after  a  commission  of  bankruptcy  sued  out,  may  not,  in  consid- 
eration of  a  debt  due  before  the  bankruptcy,  and  for  which  the 
creditor  agrees  to  accept  no  dividend  or  benefit  under  the  com- 
mission, make  such  creditor  a  satisfaction  in  part  or  for  the 
whole  of  his  debt,  by  a  new  undertaking  and  agreement  ?  A 
bankrupt  may  undoubtedly  contract  new  debts  ;  therefore,  if 
there  is  an  objection  to  his  reviving  an  old  debt  by  a  new  prom- 
ise, it  must  be  founded  upon  the  ground  of  its  being  nudum 
paeticm.  As  to  that  all  the  debts  of  a  bankrupt  are  due  in  con- 
science, notwithstanding  he  has  obtained  his  certificate,  and  there 
is  no  honest  man  who  does  not  discharge  them  if  he  afterward 
has  it  in  his  power  to  do  so.  Though  all  legal  remedy  may  be 
gone,  the  debts  are  clearly  not  extinguished  in  conscience. 
How  far  have  the  courts  of  equity  gone  upon  these  principles  ? 
Where  a  man  devises  his  estate  for  payment  of  his  debts,  a  court 
of  equity  says  (and  a  court  of  law  in  a  case  properly  before 
them  would  say  the  same)  all  debts  barred  by  the  statute  of 
limitations  shall  come  in  and  share  the  benefit  of  the  devise, 
because  they  are  due  in  conscience.  Therefore,  though  barred 
by  law,  they  shall  be  held  to  be  revived  and  charged  by  the 
bequest.  What  was  said  in  the  argument  relative  to  the  reviv- 
ing a  promise  at  law,  so  as  to  take  it  out  of  the  Statute  of  Lim- 
itations, is  very  true.  The  slightest  acknowledgment  has  been 
held  sufficient,  as  saying,  "  Prove  your  debt  and  I  will  pay 
you  ;"  "  I  am  ready  to  account,  but  nothing  is  due  to  you." 
And  much  slighter  acknowledgments  than  these  will  take  a 
debt  out  of  the  statute.  So  in  the  case  of  a  man  who,  after  he 
comes  of  age,  promises  to  pay  for  goods  or  other  things  which, 
during  his  minority,  one  cannot  say  he  has  contracted  for, 
because  the  law  disables  him  from  making  any  such  contract  ; 
but  which  he  has  been  fairly  and  honestly  supplied  with,  and 
which  were  not  merely  to  feed  his  extravagance,  but  reasonable 
for  him  (under  his  circumstances)  to  have  ;  such  promise  shall 


624  TRUEMAN   V.   FENTON.  [cHAP.  l. 

be  binding  upon  him  and  make  his  former  undertaking  good. 
Let  us  see  then  what  the  transaction  is  in  the  present  case. 
The  bankrupt  appears  to  me  to  have  defrauded  the  plaintiff  by- 
drawing  him  in,  on  the  eve  of  a  bankruptcy,  to  sell  him  such  a 
quantity  of  goods  on  credit.  It  was  grossly  dishonest  in  him 
to  contract  such  a  debt  at  a  time  when  he  must  have  known  of 
his  own  insolvency,  and  which  it  is  clear  the  plaintiff  had  not 
the  smallest  suspicion  of,  or  he  would  not  have  given  credit  and 
a  day  of  payment  ifi  futuro.  On  the  other  hand,  what  is  the 
conduct  of  the  plaintiff  ?  He  relinquishes  all  hope  or  chance  of 
benefit  from  a  dividend  under  the  commission  by  forbearing  to 
prove  his  debt,  gives  up  the  securities  he  had  received  from  the 
bankrupt,  and  accepts  of  a  note  amounting  to  little  more  than 
half  the  real  debt  in  full  satisfaction  of  his  whole  demand.  Is 
that  against  conscience  ?  Is  it  not,  on  the  contrary,  a  fair  con- 
sideration for  the  note  in  question  ?  He  might  foresee  pros- 
pects from  the  way  of  life  the  bankrupt  was  in,  which  might 
enable  him  to  recover  this  part  of  his  debt,  and  he  takes  his 
chance,  for  till  then  he  could  get  nothing  by  the  mere  imprison- 
ment of  his  person.  He  uses  no  threats,  no  menace,  no  oppres- 
sion, no  undue  influence,  but  the  proposal  first  moves  from  and 
is  the  bankrupt's  own  voluntary  request.  The  single  question 
"^  then  is  whether  it  is  possible  for  the  bankrupt  in  part  or  for  the 
whole  to  revive  the  old  debt.  As  to  that,  Aston,  J.,  has  sug 
gested  to  me  the  authority  of  Bailey  v.  Dillon,  where  the  Court 
would  not  hold  to  special  bail,  but  thought  reviving  the  old 
debt  was  a  good  consideration.  The  two  cases  cited  by  Buller 
are  very  material.  Lewis  v.  Chase,  i  P.  Wms.  620,  is  much 
stronger  than  this,  for  that  smelt  of  the  certificate,  and  the  Lord 
.  Chancellor's  reasoning  goes  fully  to  the  present  question.  Then 
the  case  of  Barnardiston  v.  Coupland,  in  C.  B.,  is  in  point. 
Lord  Willes,  C.J.,  there  says  "  that  the  revival  of  an  old  debt 
I  is  a  sufficient  consideration."  That  determines  the  whole  case. 
Therefore  I  am  of  opinion  that  if  the  plea  put  in  had  been 
formally  pleaded,  the  merits  of  the  case  would  not  have  been 
sufficient  to  bar  the  plaintiff's  demand. 

Aston,  J.  As  a  case  of  conscience,  I  am  clearly  of  opinion 
that  the  plaintiff  is  entitled.  Wherever  a  party  waives  his  right 
to  come  in  under  the  commission  it  is  a  benefit  to  the  rest  of 
the  creditors.  In  the  case  of  Bailey  v.  Dillon,  the  Court  on  the 
last  day  of  the  term  were  of  opinion  "  that  the  defendant  could 
not  be  held  to  special  bail,  yet  they  would  not  say  that  he  might 
not  revive  the  old  debt,  which  was  clearly  due  in  conscience." 
A  bankrupt  may  be,  and  is  held  to  be  discharged  by  his  certifi- 
cate from  all  debts  due  at  the  time  of  the  commission,  but  still 


SEC.  u/i.]  HAWKES   AND   WIFE   V.    SAUNDERS.  625 

he  may  make  himself  liable  by  a  new  promise.  If  he  cx)uld  not, 
the  provision  in  the  stat.  5  Geo.  2,  ch.  30,  §  11,  by  which  every 
security  for  the  payment  of  any  debt  due  before  the  party 
became  bankrupt-  as  a  consideration  to  a  creditor  to  sign  his 
certificate  is  made  void  would  be  totally  nugatory.  Lord  Mans- 
field added  that  this  observation  was  extremely  forcible  and 
strong. 

Per  Curiam.     Judgment  for  the  plaintiff. 


HAWKES  AND  WIFE  v.  SAUNDERS. 

In  the  King's  Bench,  Hilary  Term,  January  28,  1782. 

\Reported  m  Cowper  2  89.  J 

This  action  was  brought  against  the  defendant  in  her  own 
right,  and  the  declaration  stated  that  George  Saunders  by  his 
will  bequeathed  a  legacy  of  ^50  to  the  plaintiff  ;  that  he  ap- 
pointed the  defendant  his  executrix  ;  that  she  proved  the  will  ; 
that  goods  and  chattels  came  to  her  hands  more  than  sufficient 
to  pay  all  the  testator's  debts  and  legacies,  by  reason  whereof 
she  became  liable  to  pay  the  legacy,  and  being  so  liable,  in  con- 
sideration thereof  she  promised  to  pay  it. 

Lord  Mansfield.  This  case  does  not  at  all  involve  in  it  the 
question  whether  a  legatee  has  a  general  right  to  sue  for  a 
legacy  in  this  Court. 

Two  objections  have  been  made  :  First,  that  there  can  be  no 
judgment  in  this  case  de  bonis  testatoris,  because  the  action  is  not 
brought  against  the  defendant  as  executrix  eo  nomine,  but  is  a 
personal  demand  against  her  generally  in  her  own  right.  As 
to  that  we  are  of  opinion  the  objection  is  good,  for  the  demand 
is  certainly  a  personal  demand  against  the  defendant  in  conse- 
quence of  a  promise  made  by  her,  she  being  executrix. 

It  is  admitted  at  the  bar  that  after  verdict  it  must  be  taken 
to  have  been  a  promise  in  writing  and  that  there  were  assets. 
If  so,  the  whole  case  is  reduced  to  this  single  point,  whether 
the  circumstance  of  the  defendant  having  assets  sufficient  to 
pay  all  the  debts  and  legacies  is  or  is  not  a  sufficient  consider- 
ation for  her  to  make  a  promise  to  pay  the  legacy  in  question. 
As  to  that  point,  the  rule  laid  down  at  the  bar  as  to  what  is  or 
is  not  a  good  consideration  in  law,  goes  upon  a  very  narrow 
ground  indeed — namely,  that  to  make  a  consideration  to  sup- 
port an  assumpsit,  there  must  be  either  an  immediate  benefit  to 


626  HAWKES   AND   WIFE   V.    SAUNDERS.  [CHAP.  I. 

the  party  promising,  or  a  loss  to  the  person  to  whom  the  prom- 
/lise  was  made.  I  cannot  agree  to  that  being  the  only  ground  of 
'consideration  sufficient  to  raise  an  assuvipsit. 

Where  a  man  is  under  a  legal  or  equitable  obligation  to  pay, 
the  law  implies  a  promise,  though  none  was  ever  actually  made. 
A  fortiori,  a  legal  or  equitable  duty,  is  a  sufficient  consideration 
for  an  actual  promise.  Where  a  man  is  under  a  moral  obligation, 
Iwhich  no  court  of  law  or  equity  can  enforce,  and  promises,  the 
honesty  and  rectitude  of  the  thing  is  a  consideration.  As  if  a 
'man  promise  to  pay  a  just  debt,  the  recovery  of  which  is  barred 
by  the  Statute  of  Limitations  ;  or  if  a  man,  after  he  comes  of 
age,  promises  to  pay  a  meritorious  debt  contracted  during  his 
minority,  but  not  for  necessaries  ;  or  if  a  bankrupt,  in  affluent 
circumstances  after  his  certificate,  promises  to  pay  the  whole  of 
his  debts  ;  or  if  a  man  promise  to  perform  a  secret  trust,  or  a 
trust  void  for  want  of  writing  by  the  Statute  of  Frauds. 

In  such  and  many  other  instances,  though  the  promise  gives 
a  compulsory  remedy,  where  there  was  none  before  either  in 
law  or  equity,  yet  as  the  promise  is  only  to  do  what  an  honest 
man  ought  to  do,  the  ties  of  conscience  upon  an  upright  mind 
are  a  sufficient  consideration.  But  an  executor  who  has  re- 
ceived assets  is  under  every  kind  of  obligation  to  pay  a  legacy. 
He  receives  the  money  by  virtue  of  an  office  which  he  swears 
to  execute  duly.  He  receives  the  money  as  a  trust  or  deposit 
to  the  use  of  the  legatee.  He  ought  to  assent  if  he  has  assets. 
He  has  no  discretion  or  election.  He  retains  what  belongs  to 
the  legatee,  and  therefore  owes  him  to  the  amount. 

An  account  of  assets  or  a  judgment  to  pay  out  of  assets  is 
only  necessary  when  the  sufficiency  of  assets  is  uncertain. 
Where  the  sufficiency  of  assets  received  is  certain,  the  executor's 
duty  to  pay  a  legatee  follows  by  necessary  consequence. 

The  legacy  in  such  a  case  is  a  demand  clearly  due  from  the 
executor  upon  various  grounds  of  natural  and  civil  justice,  and 
may  be  recovered  from  him  by  process  of  law.  In  such  a  case 
a  promise  to  pay  stands  upon  the  strongest  consideration. 

Let  us  see,  then,  what  the  facts  are  in  the  present  case.  The 
executrix  knows  the  state  of  her  testator's  affairs  and  of  his 
property.  It  might  consist  of  chattels  which  she  might  not 
choose  to  dispose  of.  It  might  consist  of  leases  which  she  had 
no  mind  to  sell,  and  having  a  full  fund  to  pay  the  demand, 
which  the  plaintiff  had  a  right  to  recover  if  he  pleased,  she,  in 
consideration  of  that  fund,  promises  to  pay.  I  cannot  think 
that  this  is  not  a  sufficient  consideration.  I  am  of  opinion  it  is 
amply  sufficient.  It  is  not  like  the  case  of  Rann  v.  Hughes, 
for  there  there  were  no  assets  nor  any  averment  of  assets  stated 


SEC.  u/i.]  HAWKES   AND    WIFE   V.    SAUNDERS.  627 

m  the  declaration.  But  in  tliis  case  there  was  a  full  fund,  and 
therefore  she  was  bound  in  law,  justice,  and  conscience  to  pay 
the  plaintiff  his  legacy. 

WiLLES  and  Ashhurst,  JJ.,  were  of  the  same  opinion. 

BuLLER,  J.  I  am  entirely  of  the  same  opinion.  That  an 
action  in  the  courts  of  Westminster  Hall  will,  under  some  cir- 
cumstances, lie  for  a  legacy,  is  a  question  which  I  think  can 
never  admit  of  any  serious  doubt,  for  there  are  a  number  of 
cases  in  the  books  from  the  time  of  Henry  VI.  to  the  present 
time  which  prove  that  under  different  circumstances  such  action 
may  be  maintained.  I  think  there  is  as  little  doubt  but  that 
the  circumstances  of  the  present  case,  as  proved  at  the  trial, 
were  sufficient  to  sustain  an  action,  for  the  legacy  was  to  be 
paid  out  of  land,  and  there  was  an  express  assent  by  the  execu- 
trix to  the  legacy.  But  the  evidence  which  was  given  at  the 
trial  is  not  now  before  the  Court.  We  are  to  decide  this  case 
upon  the  face  of  the  record  alone. 

The  plaintiff  in  his  declaration  has  not  stated  that  the  legacy 
was  payable  out  of  land,  neither  has  he  stated  any  assent  by  the 
executrix. 

The  action  is  brought  against  the  defendant  in  her  own  right, 
and  the  declaration  is  simply  that  George  Saunders  by  his  will 
bequeathed  a  legacy  to  the  plaintiff,  and  made  the  defendant 
executrix  ;  that  she  proved  the  will  and  had  assets  sufficient  to 
pay  all  the  debts  and  legacies,  and  by  reason  thereof  she  became 
liable  to  pay  the  legacy,  and  being  so  liable,  she  promised  to 
pay  it. 

To  this  declaration  two  objections  have  been  made  in  arrest 
of  judgment  :  First,  that  the  defendant  is  not  sufficiently  de- 
scribed as  executrix,  and,  therefore,  there  cannot  be  judgment 
de  bonis  testatoris  ;  secondly,  no  judgment  can  be  entered  de  bonis 
propriis^  because  there  was  no  consideration  for  the  promise,  and 
therefore  it  is  nudum  pactum. 

As  to  the  first,  I  am  of  opinion  that  the  plaintiff  cannot  upon 
this  declaration  take  judgment  de  bonis  testatoris.  The  action  is 
brought  against  the  defendant  in  her  own  right  and  not  as 
executrix.  It  charges  her  with  a  personal  promise  to  pay  the 
legacy,  and  not  upon  a  qualified  promise  to  pay  as  executrix  or 
out  of  assets.  And  the  plaintiff  having  by  his  declaration  made 
a  personal  demand  against  her,  he  must  stand  or  fall  by  that, 
and  cannot  now  resort  to  any  demand  that  he  may  have  upon 
her  in  the  particular  character  of  the  executrix. 

The  forms  of  pleading  are  very  different  where  a  person  is 
charged  as  executrix  and  where  she  is  charged  personally.  In 
the  first  case,  she  is  always  named  as  executrix  in  the  beginning 


J 


628  HAWKES   AND   WIFE   V.    SAUNDERS.  [chap.  I. 

of  the  declaration.  She  is  afterward  stated  to  be  liable  as  exec- 
utrix, and  the  promise  alleged  to  have  been  made  by  her  as 
executrix.  But  in  the  other  case  she  is  charged  generally  as 
any  other  person,  and  a  general  charge  is  a  personal  charge. 

This  case,  therefore,  depends  wholly  upon  the  second  ques- 
tion, whether  there  be  a  sufficient  consideration  alleged  for  the 
promise  or  whether  the  defendant's  promise  be  merely  nudum 
j>actum  and  void. 

The  consideration  stated  for  the  promise  is  that  the  defendant 
was  executrix,  and  that  she  had  received  assets  more  than  suffi- 
cient to  pay  all  the  debts  and  legacies.  The  question  is  whether 
that  be  not  a  sufficient  consideration. 

Under  those  circumstances,  if  there  had  been  no  promise  nor 
even  an  assent  to  the  legacy,  the  defendant  might  have  been 
compelled  in  a  court  of  equity  or  in  the  ecclesiastical  court  to 
have  paid  it.  Whether  without  assent  she  could  be  compelled 
in  a  court  of  law  to  pay  it  or  not,  is  a  question  which  it  is  not 
necessary  to  give  any  opinion  upon  now  ;  and,  therefore, 
though  I  have  endeavored  to  trace  out  the  jurisdiction  and  the 
authority  of  the  ecclesiastical  court  from  the  earliest  times,  and 
though  there  is  great  reason  to  suppose  that  the  jurisdiction 
which  that  court  now  possesses  in  matters  of  legacy  was  orig- 
inally got  by  usurpation  on  the  temporal  courts,  and  though 
there  is  a  wide  difference  between  allowing  to  the  ecclesiastical 
court  a  jurisdiction  in  such  matters,  and  saying  it  shall  have 
that  jurisdiction  exclusive  of  all  other  courts,  I  purposely  avoid 
giving  any  opinion  or  even  hinting  what  would  be  the  result  of 
my  researches  where  there  is  no  promise  or  assent. 

I  shall  give  my  opinion  singly  on  this  point  ;  whether  an 
obligation  in  justice,  equity,  and  conscience  to  pay  a  sum  of 
money  be  or  be  not  a  sufficient  consideration  in  point  of  law  to 
support  a  promise  to  pay  that  sum. 

If  such  a  question  were  stripped  of  all  authorities,  it  would 
be  resolved  by  inquiring  whether  law  were  a  rule  of  justice  or 
whether  it  were  something  that  acts  in  direct  contradiction  to 
justice,  conscience,  and  equity.  But  the  matter  has  been  re- 
peatedly decided. 

In  Stone  v.  Withypool,  Latch.  21,  the  Court  say  :  "It  is  an 
y  usual  allegation  for  a  rule  that  everything  which  is  a  ground 
/for  equity  is  a  sufficient  consideration."  So  in  Wells  v.  Wells, 
I  Vent.  41,  the  Court  presumed  an  equitable  right  in  the  plain- 
tiff, which  did  not  appear  on  the  declaration,  and  held  that  to 
debar  herself  of  that  was  a  good  consideration. 

These  authorities  alone  are  sufficient  to  show  that  the  ground 
Viken  in  the  argument  at  the  bar  is  not  large  enough. 


SEC.  II//.]  HAWKES   AND    WIFE    V.    SAUNDERS.  629 

But  to  come  closer  to  the  consideration  now  in  question,  in 
Camden  z'.  Turner  C.  B.  Sittings  after  Trin.  5  Geo.  i,  King, 
C.J.,  held  that  an  action  for  money  had  and  received  lay  against 
an  executor  for  a  legacy,  which  he  had  owned  lay  ready  for  the 
plaintiff  whenever  he  would  call  for  it.  In  that  case,  according 
to  the  form  of  the  declaration,  the  objection  did  not  appear 
upon  the  record,  but  it  was  necessary  for  the  plaintiff  to  prove 
a  consideration  at  the  trial,  and  if  he  had  not,  he  must  have 
been  non-suited  or  have  had  a  verdict  against  him.  But  Lord 
King  held  that  his  owing  the  money  lay  ready  was  an  assent, 
and  admission  of  assets,  and  a  sufficient  consideration. 

In  Keech  v.  Kennegal,  i  Vez.  125,  Lord  Hardwicke  expressly 
holds  that  assets  coming  to  an  executor's  hands  is  a  sufficient 
consideration  to  support  a  promise,  and  he  puts  that  case  upoa 
the  same  footing  as  a  promise  in  consideration  of  forbearance. 
His  Lordship  says  :  "  At  law,  if  an  executor  promises  to  pay  a 
debt  of  his  testator's,  a  consideration  must  be  alleged,  as  of 
assets  come  to  his  hands  or  of  forbearance,  or  if  admission  of 
assets  is  implied  by  the  promise,  otherwise  it  will  be  but  nudum 
pactum  and  not  personally  binding  on  the  executor." 

In  Trevinian  v.  Howel,  Cro.  Eliz.  91,  it  was  adjudged  that 
having  assets  is  a  good  consideration  for  a  promise,  and  the 
judgment,  which  was  de  bonis  propriis,  was  affirmed  ;  and  two 
other  cases  are  there  cited  where  the  same  point  had  been  so 
determined.  Lastly,  the  case  of  Atkins  v.  Hill,  Easter,  15  Geo. 
3,  supra  284  is  in  point.  The  declaration  was  the  same,  and  the 
objection  the  same  as  in  the  present  case,  and  the  Court  unan- 
imously held  that  the  promise  was  good  and  that  the  action 
well  lay. 

I  agree  with  my  Lord,  that  the  rule  laid  down  at  the  bar,  as 
to  what  is  or  is  not  a  good  consideration,  is  much  too  narrow. 
The  true  rule  is  that  wherever  a  defendant  is  under  a  moral 
obligation,  or  is  liable  in  conscience  and  equity  to  pay,  that  is 
a  sufficient  consideration.  Some  of  the  cases  which  I  have  men- 
tioned go  fully  to  that  extent.  But  even  if  the  narrow  rule 
which  has  been  mentioned  were  adopted  as  the  true  rule,  yet  in 
this  case  I  think  the  consideration  is  sufficient,  for  here  is  both 
a  loss  to  the  plaintiff  and  a  benefit  to  the  defendant  arising 
from  that  which  is  the  consideration  of  the  promise.  The  loss 
to  the  plaintiff  is  that  the  effects  which  are  liable  to  the  pay- 
ment of  the  legacy  have  not  been  so  applied,  but  the  defendant 
has  detained  them  in  her  own  hands  for  other  purposes.  The 
benefit  to  the  defendant  is  that  she  has  received  those  effects 
and  has  them  still.  The  defendant  is  bound  in  conscience  to 
apply  the  effects  toward  the  discharge  of  the  debts  and  lega 


630  LEE   V.    MUGGERIDGE    AND    ANOTHER.  [cHAP.  I. 

cies.  She  is  a  trustee  for  that  purpose,  and  is  guilty  of  a  breach 
of  trust  in  not  so  doing  ;  and  it  is  admitted  that  a  breach  of 
trust  is  a  good  ground  for  action. 

Therefore  I  agree  in  opinion  with  the  rest  of  the  Court,  that 
this  rule  in  arrest  of  judgment  ought  to  be  discharged. 

Per  Curiam.     Rule  discharged. 


LEE   V.  MUGGERIDGE    and   Another,   Executors   of 
MARY    MUGGERIDGE,    Deceased. 

In  the  Common  Pleas,  June  29,  1813. 

[Reported  hi  5  Tauntoti  36.  j 

This  was  an  action  of  assumpsit,  brought  in  consequence  of 
Grant,  M.R.,  having  dismissed  a  bill  filed  by  the  same  plaintiff 
against  the  same  defendants  to  obtain  payment  of  the  bond 
hereinafter  mentioned,  but  with  liberty  for  the  plaintiff  to  bring 
such  action  at  law  as  he  might  be  advised,  i  Ves.  &  Beames, 
118.  The  plaintiff  declared  in  this  Court  that  before  the  mak- 
ing the  bond  thereinafter  mentioned,  on  November  21st,  1789, 
at  London,  etc.,  by  indenture  between  John  Muggeridge,  i, 
Mary,  the  deceased,  by  her  then  name  of  Mary  Hiller,  2,  and 
John  Reynolds,  clerk,  and  Stephen  Reynolds,  3,  after  reciting 
that  the  said  Mary  was  seized  of  and  in,  or  well  entitled  unto 
the  fee-simple  in  possession  of  a  certain  messuage,  and  that  she 
was  entitled  to  the  sums  of  ^3000  per  cent  bank  annuities,  and 
^2000  5  per  cent  bank  annuities,  and  ^2000  3  per  .cent  South 
Sea  annuities,  and  other  debts,  moneys,  and  effects  ;  that  a 
marriage  was  about  to  be  had  between  John  Muggeridge  and 
Mary,  and  that  the  same  sums  had  been  transferred  into  and 
were  then  standing  in  the  names  of  John  and  Stephen  Reynolds, 
the  said  messuage,  and  all  the  rents,  issues,  and  profits  there- 
unto belonging,  and  all  the  estate  and  interest  of  Mary  therein, 
were  by  such  indenture  granted  and  released  by  the  said  Mary 
to  the  said  trustees,  their  heirs  and  assigns,  to  hold  the  same  to 
them  and  their  heirs,  to  the  use  of  Mary,  her  heirs  and  assigns, 
until  the  marriage,  and  afterward  to  the  use  of  the  trustees, 
their  heirs  and  assigns,  during  the  joint  lives  of  John  Mugger- 
idge and  Mary  Hiller,  upon  trust  to  pay  and  apply  the  rents, 
etc.,  thereof  to  Mary  Hiller,  or  to  such  person  or  persons  as  she 
should  from  time  to  time,  by  any  note  or  writing  under  her 
hand,  direct  and  appoint  to  receive  the  same,  during  the  joint 


SEC.  U/i.]  LEE   t'.    MUGGERIDGE   AND    ANOTHER.  63 1 

lives  of  husband  and  wife,  for  her  sole  and  separate  use,  exclu- 
sive of  her  husband,  and  not  subject  or  liable  to  his  debts,  con- 
trol, or  engagements,  and  the  receipt  of  her,  or  of  such  person 
as  she  should  so  direct  or  appoint  to  receive  the  same,  should, 
notwithstanding  her  coverture,  be  a  good  discharge  for  the 
same  ;  and  after  the  decease  of  J.  Muggeridge,  in  case  Mary 
Hiller  should  survive  him,  to  the  use  of  her  and  her  heirs  and 
assigns  forever  ;  but  in  case  she  should  die  in  his  lifetime,  then 
to  the  use  of  such  person,  and  for  such  estates,  and  subject  to 
such  limitations,  etc.,  and  annual  or  other  charges,  etc.,  and  in 
such  sort,  manner,  and  form,  as  Mary  by  will,  or  by  any  writ- 
ing in  the  nature  of  or  purporting  to  be  her  will,  by  her  signed 
and  published  as  therein  mentioned,  should  direct,  limit,  or 
appoint  ;  and  in  default  of,  until,  and  in  complement  of  such 
direction,  etc.,  and  as  and  when  the  several  estates,  etc.,  thereby 
limited,  etc.,  should  cease  and  determine  to  the  use  of  Hannah 
Hiller,  daughter  of  Mary,  in  fee  ;  and  a  power  of  leasing  the 
same  premises  in  the  manner  therein  mentioned  was  given  to 
the  trustees  ;  and  the  indenture  also  contained  a  clause  whereby 
the  trustees  were  empowered  to  sell  the  messuage  in  manner 
therein  mentioned,  and  that  the  moneys  arising  from  such  sale 
should  be  placed  out  and  invested  at  interest  in  the  public  funds 
or  on  government  or  real  securities,  in  the  names  of  the  trustees 
and  the  survivor  of  them  and  the  heirs,  etc.,  of  such  survivor, 
to  stand  and  be  possessed  thereof,  and  of  the  annual  interest 
thereof,  upon  trust  for  such  person  as  should  have  been  entitled 
to  the  hereditaments,  and  the  rents  thereof,  if  the  same  had  not 
been  sold  ;  and  it  was  thereby  declared  that  the  trustees  should 
stand  possessed  and  interested  in  the  sums  of  stock  so  trans- 
ferred into  their  names  in  trust  for  Mary  Hiller  until  the  mar- 
riage, and  after  the  same,  upon  trust  to  pay  her  the  interest, 
etc.,  thereof  during  the  joint  lives  of  herself  and  J.  Muggeridge, 
for  her  sole  and  separate  use,  exclusive  of  J.  Muggeridge,  and 
not  to  be  subject  to  his  debts,  control,  or  engagements,  and  her 
receipts  for  the  same  were  to  be  a  sufificient  discharge  for  the 
same  to  the  trustees,  notwithstanding  her  coverture,  and  from 
and  after  the  husband's  death,  in  case  she  should  survive  him, 
then  upon  trust  for  her,  her  executors,  administrators,  and 
assigns  ;  but  in  case  she  should  die  in  the  husband's  lifetime, 
upon  trust  at  all  times  after  her  decease,  to  assign  and  transfer 
the  several  and  respective  funds  to  such  persons,  in  such  shares, 
and  to  and  for  such  intents,  etc.,  and  subject  to  such  powers, 
etc.,  as  Mary  Hiller,  notwithstanding  her  coverture  by  will,  or 
by  any  writing  in  the  nature  of,  or  purporting  to  be  her  will, 
to  be  executed  and  attested  as  therein  mentioned,  should  de- 


>■« 


v 


632  LEE   V.    MUGGERIDGE   AND   ANOTHER.  [chap.  i. 

clare,  limit,  direct,  or  appoint  ;  and  in  default  thereof,  upon 
trust  to  pay,  transfer,  and  assign  the  same  unto  Hannah  Hiller, 
her  executors,  etc.,  for  her  and  their  own  proper  use  and  bene- 
fit ;  and  that  the  intended  marriage  afterward  took  effect  be- 
tween the  said  J.  Muggeridge  and  Mary,  and  that  after  such 
marriage  had,  and  during  the  respective  lives  of  John  and  Mary, 
,  r  I  to  wit,  on  August  14th,  1799,  at  London,  Mary,  by  her  certain 
\  ^"^  ;  writing  obligatory,  sealed  with  her  seal,  acknowledged  herself 
■^  to  be  held  and  firmly  bound  to  the  plaintiff  in  the  penal  sum  of 
^4000,  under  a  condition  thereto  subscribed,  whereby,  after  re- 
citing that  J.  Hiller,  son-in-law  of  the  said  Mary,  had  applied 
to  her  to  advance  and  lend  him  the  sum  of  ^1999  19-$'.,  which 
not  being  convenient  to  her  to  do,  she  had  applied  to  the  plain- 
tiff to  advance  the  same,  to  which  he  had  consented  on  having 
her  bond  as  above  written,  and  had  accordingly  advanced  to 
J.  Hiller,  before  the  sealing  and  delivery  thereof,  the  sum  of 
^^500,  and  had  also  advanced  and  lent  to  him  by  good  bills,  to 
Joseph  Hiller's  satisfaction,  the  further  sum  of  ^1499  19-f., 
making  in  the  whole  ^^1999  i9-s'.  ;  then  the  condition  of  the 
same  was  that  if  the  heirs,  executors,  or  administrators  of  Mary 
did  and  should,  within  six  months  after  her  decease,  pay  unto 
the  plaintiff,  etc.,  the  full  sum  of  ;a^i999  19^.,  together  with  in- 
terest for  the  same  at  the  rate  of  ^5  per  cent  per  annum,  or  so 
much  of  the  principal  or  interest  thereof  as  J.  Hiller  should 
have  omitted  to  pay  (it  being  agreed  that  he  should  regularly 
pay  the  interest  thereof  to  the  plaintiff  half-yearly,  as  the  same 
should  become  due),  then  the  said  bond  to  be  void,  and  the 
plaintiff  averred  that  he  did  advance  to  J.  Hiller,  before  the 
delivery  of  such  bond,  ;;/^5oo,  and  did  also  in  Mary's  lifetime, 
and  before  the  making  her  promise  and  undertaking  next  men- 
tioned, advance  and  lend  to  J.  Hiller,  by  good  bills  to  his  satis- 
faction, divers  other  large  sums  amounting  in  the  whole  to 
^1499  19^.,  making  in  the  whole  ^1999  19^.,  whereof  Mary  had 
notice,  and  that  Joseph  omitted  to  pay  any  part  of  the  prin- 
cipal, and  paid  interest  thereon  only  up  to  July  ist,  1801  ;  he 
then  averred  the  death  of  J.  Muggeridge  afterward  and  before 
the  promise  of  Mary  next  mentioned,  that  she  survived  him, 
and  that  the  principal  sum  of  ^1999  19^.,  so  lent  by  the  plaintiff 
to  J.  Hiller,  and  for  securing  the  repayment  of  which  and  in- 
terest Mary  so  made  and  delivered  the  aforesaid  writing  obliga- 
tory, and  all  interest  thereon  from  July  ist,  1801,  being  and 
remaining  wholly  unpaid,  and  Mary  having  full  knowledge  and 
notice  of  the  premises,  she  afterward,  and  after  the  death  of 
her  husband,  J.  Muggeridge,  and  while  she  was  sole,  and  a 
widow,  to  wit,  on  July  nth,  1804,  at  London,  etc.,  in  consider- 


SEC.  u/i.]  LEE   V.    MUGGERIDGE   AND   ANDIIIKR.  633 

ation  of  the  premises,  undertook  to  the  plaintiff  that  the  bond 
(that  is  to  say),  the  principal  money  and  interest  secured  by 
the  bond  should  be  settled  (that  is  to  say),  paid,  by  her  execu- 
tors ;  and  the  plaintiff  further  averred  that  Mary  afterward,  to 
wit,  on  April  28th,  181 1,  at  London,  etc.,  died,  having  first 
duly  made  and  published  her  last  will  and  testament  in  writing, 
and  thereby,  after  devising  the  messuage  to  the  defendant, 
Nathaniel  Muggeridge,  in  fee,  and  after  giving  several  legacies 
as  therein  particularly  mentioned,  gave  and  bequeathed,  sub- 
ject to  such  legacies  and  to  the  payment  of  her  just  debts, 
funeral  and  testamentary  expenses,  all  the  residue  of  her  estate 
and  effects,  real  and  personal,  to  the  defendant,  Nathaniel  Mug- 
geridge, and  thereby  appointed  the  two  defendants  executors 
thereof,  who  afterward  duly  proved  the  same,  and  took  upon 
themselves  the  burden  of  the  execution  thereof  ;  and  the  plain- 
tiff further  averred  that  the  said  principal  money,  and  interest 
from  the  time  aforesaid,  at  the  time  of  the  death  of  Mary  was, 
and  still  was  wholly  unpaid,  and  that  divers  goods,  chattels, 
and  effects,  rights,  and  credits,  which  were  of  Mary,  the  de- 
ceased, at  the  time  of  her  death,  more  than  sufficient  to  satisfy 
the  principal  and  interest  and  all  the  other  just  debts  of  Mary 
had  come  to  and  been  in  the  hands  of  the  defendants,  as  execu- 
tors, to  be  administered  ;  and  that  the  defendants,  as  such 
executors,  afterward,  and  after  the  expiration  of  six  months 
from  the  death  of  the  said  Mary,  to  wit,  on  November  ist, 
181 1,  at  London,  etc.,  had  notice  of  all  and  singular  the  prem- 
ises, and  were  then  requested  by  the  plaintiff  to  settle  the 
bond  (that  is  to  say),  to  pay  the  principal  money,  and  interest 
so  omitted  to  be  paid  by  J.  Hiller,  according  to  the  form  and 
effect  of  such  promise  and  undertaking  of  Mary  in  her  lifetime 
so  by  her  made,  but  that  they,  not  regarding  such  promise  and 
undertaking  of  Mary,  did  not  nor  would,  when  so  requested,  or 
at  any  time  since,  settle  such  bond,  or  pay  the  principal  and 
interest,  and  the  same  remained  wholly  unpaid.  There  was 
another  count,  omitting  the  statement  of  the  settlement,  and 
stating  the  bond  to  be  given  in  consideration  of  the  loan  made 
to  Joseph  Hiller,  and  the  death  of  John  Muggeridge,  the  hus- 
band, and  the  survivorship  and  subsequent  promise,  will,  and 
decease  of  Mary,  probate,  the  possession  of  assets,  notice,  re- 
quest, and  refusal  of  the  executors.  The  third  count  stated  a, 
promise  made  by  the  deceased  while  she  was  sole  and  a  widow,  ' 
in  consideration  of  money  before  then  advanced  to  Joseph  Hiller 
at  her  request,  her  subsequent  will  and  death,  and  probate,  the 
possession  of  assets,  notice,  request,  and  refusal  to  pay  by  the 
executors.     There  were  other  counts,   varying  the   statement, 


/ 


634  LEE   V.    MUGGERIDGE   AND   ANOTHER.  [CHAP.  I. 

and  counts  upon  an  account  stated  with  the  deceased.  The  de- 
fendant pleaded  the  general  issue.  Upon  the  trial  of  the  cause 
at  the  sittings  after  Hilary  Term,  1813,  at  Guildhall,  before 
Gibbs,  J.,  the  transaction  was  proved  as  stated  in  the  first 
count,  so  far  as  related  to  the  settlement,  loan,  and  bond,  a 
letter  was  proved,  written  by  the  deceased  during  her  widow- 
hood, addressed  to  the  plaintiff,  stating  "  that  it  was  not  in  her 
power  to  pay  the  bond  off,  her  time  here  was  but  short,  and 
that  would  be  settled  by  her  executors."  The  jury  found  a 
verdict  for  the  plaintiff,  which  at  the  time  of  the  trial  was  en- 
tered generally  upon  the  whole  declaration. 

Shepherd,  in  Easter  Term  last,  moved  that  the  plaintiff  might 
be  compelled  to  enter  his  verdict  upon  one  count  only. 

Per  Curiam.  It  is  hard  upon  a  counsel  to  be  compelled  to 
elect  at  nisi  prius,  in  the  hurry  of  the  cause,  upon  what  count 
he  will  take  his  verdict,  but  he  ought  afterward  to  make  an 
election. 

Lens,  for  the  plaintiff,  electing  the  first  count,  Shepherd  moved 
in  arrest  of  judgment,  on  the  ground  that  no  sufficient  consid- 
eration was  shown  for  the  promise  of  the  deceased.  The  Court 
granted  a  rule  ?iisi. 

Lens  and  Best  in  this  term  showed  cause. 
Shepherd  and  Vanghan,  contra. 

Mansfield,    C.J.       The    counsel    for   the    plaintiff  need   not 
j  trouble  themselves  to  reply  to  these  cases  ;  it  has  been  long 
I  established,  that  where  a  person  is  bound  morally  and  consci- 
1  entiously  to  pay  a  debt,  though  not  legally  bound,  a  subsequent 
I  promise  to  pay  will  give  a  right  of  action.     The  only  question 
(therefore  is,  whether  upon  this  declaration  there  appears  a  good 
I  moral  obligation.     Now  I  cannot  conceive   that   there  can  be  a 
stronger    moral    obligation    than    is    stated    upon    this    record. 
Here  is  this  debt  of  ;^2ooo  created  at  the  desire  of  the  testatrix, 
lent  in  fact  to  her,  though  paid  to  Hiller.      After  her  husband's 
death,  she  knowing  that  this  bond   had  been  given,   that   her 
son-in-law   had   received   the   money,    and   had    not  repaid   it  ; 
knowing  all  this,  she  promises  that  her  executors  shall  pay  ;  if 
f  /then  it  has  been  repeatedly  decided  that  a  moral  consideration 
I  is  a  good  consideration  for  a  promise  to  pay  this  declaration  is 
clearly  good.     This  case  is  not  distinguishable  in  principle  from 
Barnes  v.  Hedley  ;  there  not  only  the  securities  were  void,  but 
the  contract  was  void  ;  but  the  money  had  been  lent,  and  there- 
fore when  the  parties  had  stripped  the  transaction  of  its  usury, 
and  reduced  the  debt  to  mere  principal  and  interest,  the  prom- 
ise  made   to    pay    that   debt    was    binding.     Lord    Mansfield's 
judgment  in  the  case  of  Doe  on  the  demise  of  Carter  v.  Straphan 


SEC.  u/l.]  LEE   V.    MUGGERIDGE   AND    ANOTIIKR.  635 

is  extremely  applicable.  Here  in  like  manner  the  wife  would 
have  been  grossly  dishonest  if  she  had  scrupled  to  give  a  security 
for  the  money  advanced  at  her  request.  As  to  the  cases  cited, 
of  Lloyd  V.  Lee  and  Barber  z'.  Fox,  there  was  no  forbearance, 
and  those  cases  proceeded  on  the  ground  that  no  good  cause  of 
action  was  shown  on  the  pleadings. 

Heath,  J.  I  am  of  the  same  opinion.  Promises  without 
consideration  are  not  enforced,  because  they  are  gratuitous,  and 
the  law  leaves  the  performance  to  the  liberality  of  the  makers. 
The  notion  that  a  promise  may  be  supported  by  a  moral  obliga- 
tion is  not  modern  ;  in  Charles  the  Second's  time  it  was  said, 
if  there  be  an  iota  of  equity  it  is  enough  consideration  for  the/ 
promise. 

Chambre,  J.  There  cannot  be  a  stronger  or  clearer  case  of 
moral  obligation  than  this.  The  gentleman  has  done  this  lady 
a  great  favor  in  going  to  this  expense  and  accepting  an  invalid 
security  ;  and  when  she  could  give  a  better  security,  it  became 
her  duty  so  to  do,  and  she  has  done  it.  In  the  cases  cited  it 
was  the  plaintiff's  fault  if,  having  it  in  his  power  to  state  a  good 
consideration  on  the  record,  he  neglected  so  to  do. 

GiBBS,  J.  I  agree  in  this  case  the  plaintiff  is  entitled  to  re- 
cover. It  cannot,  I  think,  be  disputed  now  that  wherever  there 
is  a  moral  obligation  to  pay  a  debt,  or  perform  a  duty,  a  prom-  , 
ise  to  perform  that  duty,  or  pay  that  debt,  will  be  supported' 
by  the  previous  moral  obligation.  There  cannot  be  a  stronger 
case  than  this  of  moral  obligation.  The  counsel  for  the  de- 
fendant did  not  dare  to  grapple  with  this  position,  but  endeav- 
ored to  show  that  there  ^was  no  case,  in  which  a  subsequent 
promise  had  been  supported,  where  there  had  not  been  an 
antecedent  legal  obligation  at  some  time  or  other  ;  from  whence 
he  wished  it  to  be  infened,  that  unless  there  had  been  the  ante- 
cedent legal  obligation,  the  mere,  moral  obligation  would  not 
be  a  sufficient  consideration  to  support  the  promise.  But  in 
Barnes  v.  Hedley,  certainly  Hedley  never  was  for  a  moment 
legally  bound  to  pay  a  farthing  of  that  money  for  which  he  was 
sued  ;  for  it  appears  to  have  been  advanced  upon  a  previously 
existing  usurious  contract,  and  whatever  was  advanced  upon 
such  a  contract  certainly  could  not  be  recovered  at  any  one 
moment.  The  borrower,  availing  himself  of  the  law,  so  far  as 
he  honestly  might,  and  no  further,  reducing  it  to  mere  principal 
and  interest,  does  that  which  every  honest  man  ought  to  do  in 
like  circumstances,  promises  to  pay  it,  and  that  promise  was 
held  binding.  As  to  the  cases  of  Lloyd  z>.  Lee  and  Barber  e'. 
Fox,  they  have  sufficiently  been  answered  by  my  Lord  and  my 
Brother  Chambre,  that  if  a  man  will   state  on  his  declaration  a 


636    ^  MILLS   Z'.    WYMAN.  [CHAP.  I. 

consideration  which  is  no  consideration,  and  shows  no  other 
consideration  on  his  declaration,  although  another  good  con- 
sideration may  exist,  when  that  which  he  does  show  fails,  he 
cannot  succeed  upon  the  proof  of  the  other  which  he  has  not 
alleged.  Now  in  the  first  of  those  cases  there  was  clearly  no 
forbearance,  because  forbearance  must  be  a  deferring  to  prose- 
cute a  legal  right,  but  no  legal  right  to  recover  previously  ex- 
isted. Whatever  other  consideration  might  exist  for  the  prom- 
ise, it  was  not  stated  in  the  declaration  ;  it  is  therefore  clear 
that  this  rule  must  be  discharged  upon  the  ground,  that  wher- 
ever there  is  an  antecedent  moral  obligation,  and  a  subsequent 
promise  given  to  perform  it,  it  is  of  sufficient  validity  for  the 
plaintiff  to  be  able  to  enforce  it. 
Rule  discharged. 


DANIEL   MILLS  v.  SETH    WYMAN. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
April  Term,  1826. 

\^Reported  in  3  Pickering  207.] 

This  was  an  action  of  assumpsit  brought  to  recover  a  compen- 
sation for  the  board,  nursing,  etc.,  of  Levi  Wyman,  son  of  the 
defendant  from  February  5th  to  the  20th,  1821.  The  plaintiff 
then  lived  at  Hartford,  in  Connecticut  ;  the  defendant,  at 
Shrewsbury,  in  this  county.  Levi  Wyman,  at  the  time  when 
the  services  were  rendered,  was  about  twenty-five  years  of  age, 
and  had  long  ceased  to  be  a  member  of  his  father's  family.  He 
was  on  his  return  from  a  voyage  at  sea,  and  being  suddenly 
taken  sick  at  Hartford,  and  being  poor  and  in  distress,  was 
relieved  by  the  plaintiff  in  the  manner  and  to  the  extent  above 
stated.  On  February  24th,  after  all  the  expenses  had  been  in- 
curred, the  defendant  wrote  a  letter  to  the  plaintiff,  promising 
to  pay  him  such  expenses.  There  was  no  consideration  for  this 
promise,  except  what  grew  out  of  the  relation  which  subsisted 
between  Levi  Wyman  and  the  defendant,  and  Howe,  J.,  before 
whom  the  cause  was  tried  in  the  Court  of  Common  Pleas, 
thinking  this  not  sufficient  to  support  the  action,  directed  a 
nonsuit.     To  this  direction  the  plaintiff  filed  exceptions. 

J.  Davis  and  Allen  in  support  of  the  exceptions. 

The  opinion  of  the  Court  was  read,  as  drawn  up  by 

Parker,  C.J.  General  rules  of  law  established  for  the  pro- 
tection and  security  of  honest  and  fair-minded  men,  who  may 


SEC.   n/l.]  MILLS   V.    WYMAN.  *  637 

inconsiderately  make  promises  without  any  equivalent,  will 
sometimes  screen  men  of  a  different  character  from  engage- 
ments which  they  are  bound  in  /oro  conscientice  to  perform.  This 
is  a  defect  inherent  in  all  human  systems  of  legislation.  The 
rule  that  a  mere  verbal  promise,  without  any  consideration, 
cannot  be  enforced  by  action,  is  universal  in  its  application, 
and  cannot  be  departed  from  to  suit  particular  cases  in  which  a 
refusal  to  perform  such  a  promise  may  be  disgraceful. 

The  promise  declared  on  in  this  case  appears  to  have  been 
made  without  any  legal  consideration.  The  kindness  and  ser- 
vices toward  the  sick  son  of  the  defendant  were  not  bestowed 
at  his  request.  The  son  was  in  no  respect  under  the  care  of 
the  defendant.  He  was  twenty-five  years  old,  and  had  long 
left  his  father's  family.  On  his  return  from  a  foreign  country, 
he  fell  sick  among  strangers,  and  the  plaintiff  acted  the  part  of 
the  good  Samaritan,  giving  him  shelter  and  comfort  until  he 
died.  The  defendant,  his  father,  on  being  informed  of  this 
event,  influenced  by  a  transient  feeling  of  gratitude,  promises 
in  writing  to  pay  the  plaintiff  for  the  expenses  he  had  incurred. 
But  he  has  determined  to  break  this  promise,  and  is  willing  to 
have  his  case  appear  on  record  as  a  strong  example  of  particular 
injustice  sometimes  necessarily  resulting  from  the  operation  of 
general  rules. 

It  is  said  a  moral  obligation  is  a  sufficient  consideration  to 
support  an  express  promise  ;  and  some  authorities  lay  down 
the  rule  thus  broadly  ;  but  upon  examination  of  the  cases  we 
are  satisfied  that  the  universality  of  the  rule  cannot  be  sup- 
ported, and  that  there  must  have  been  some  pre-existing  obliga- 
tion, which  has  become  inoperative  by  positive  law,  to  form  a 
basis  for  an  effective  promise.  The  cases  of  debts  barred  by 
the  Statute  of  Limitations,  of  debts  incurred  by  infants,  of 
debts  of  bankrupts,  are  generally  put  for  illustration  of  the 
rule.  Express  promises  founded  on  such  pre-existing  equitable 
obligations  may  be  enforced  ;  there  is  a  good  consideration  for 
them  ;  they  merely  remove  an  impediment  created  by  law  to 
the  recovery  of  debts  honestly  due,  but  which  public  policy 
protects  the  debtors  from  being  compelled  to  pay.  In  all  these 
cases  there  was  originally  a  quid  pro  quo ;  and  according  to  the 
principles  of  natural  justice  the  party  receiving  ought  to  pay  ; 
but  the  legislature  has  said  he  shall  not  be  coerced  ;  then  comes 
the  promise  to  pay  the  debt  that  is  barred,  the  promise  of 
the  man  to  pay  the  debt  of  the  infant,  of  the  discharged 
bankrupt  to  restore  to  his  creditor  what  by  the  law  he  had  lost. 
In  all  these  cases  there  is  a  moral  obligation  founded  upon  an  /y/:^ 
antecedent  valuable  consideration.     These  promises   therefore      ~~^ 


638  '  MILLS   V.    WYMAN.  [CHAP.  I, 

have  a  sound  legal  basis.     They  are  not  promises  to  pay  some- 
thing for  nothing  ;  not  naked  pacts  ;  but  the  voluntary  revival 
lor  creation  of  obligation  which  before  existed  in  natural  law, 
but  which  had  been  dispensed  with,  not  for  the  benefit  of  the 
party  obliged  solely,  but  principally  for  the  public  convenience. 
If  moral  obligation,  in  its  fullest  sense,  is  a  good  substratum 
for  an  express  promise,  it  is  not  easy  to  perceive  why  it  is  not 
equally  good  to  support  an   implied   promise.      What  a  man 
,  ought  to  do,  generally  he  ought  to  be  made  to  do,  whether  he 
promise  or  refuse.     But  the  law  of  society  has  left  most  of  such 
obligations  to  the  interior  forum,  as  the  tribunal  of  conscience 
has  been  aptly  called.     Is  there  not  a  moral   obligation  upon 
every  son  who  has  become  affluent  by  means  of  the  education 
and  advantages  bestowed  upon  him  by  his  father,  to  relieve 
that  father  from  pecuniary  embarrassment,  to  promote  his  com- 
fort and   happiness,  and   even   to  share  with  him  his  riches,  if 
\  thereby  he  will  be   made  happy  ?     And  yet  such  a  son  may, 
jwith  impunity,   leave  such  a  father  in  any  degree  of  penury 
I  above  that  which  will  expose  the  community  in  which  he  dwells, 
\  to  the  danger  of  being  obliged  to  preserve  him  from  absolute 
I  want.     Is  not  a  wealthy  father  under  strong  moral  obligation 
i  to  advance  the  interest  of  an  obedient,   well-disposed  son,  to 
;  furnish  him  with  the   means   of  acquiring  and  maintaining  a 
I  becoming  rank  in  life,  to  rescue  him  from  the  horrors  of  debt 
incurred  by  misfortune  ?     Yet  the  law  will  uphold   him  in  any 
degree  of  parsimony,  short  of  that  which  would  reduce  his  son 
to  the  necessity  of  seeking  public  charity. 

Without  doubt  there  are  great  interests  of  society  which 
justify  withholding  the  coercive  arm  of  the  law  from  these  duties 
I  of  imperfect  obligation,  as  they  are  called  ;  imperfect,  not 
because  they  are  less  binding  upon  the  conscience  than  those 
which  are  called  perfect,  but  because  the  wisdom  of  the  social 
law  does  not  impose  sanctions  upon  them. 

A  deliberate  promise,  in  writing,  made  freely  and  without 
any  mistake,  one  which  may  1  :ad  the  party  to  whom  it  is  made 
into  contracts  and  expenses,  cannot  be  broken  without  a  viola- 
tion of  moral  duty.  But  if  there  was  nothing  paid  or  promised 
for  it,  the  law,  perhaps  wisely,  leaves  the  execution  of  it  to  the 
conscience  of  him  who  makes  it.  It  is  only  when  the  party 
making  the  promise  gains  something,  or  he  to  whom  it  is  made 
loses  something,  that  the  law  gives  the  promise  validity.  And 
in  the  case  of  the  promise  of  the  adult  to  pay  the  debt  of  the 
infant,  of  the  debtor  discharged  by  the  Statute  of  Limitations 
or  Bankruptcy,  the  principle  is  preserved  by  looking  back  to 
the  origin   of  the    transaction,   where   an    equivalent  is  to  be 


SEC.  11/}.]  MILLS   V.    WV.MAX.  639 

found.  An  exact  equivalent  is  not  required  by  the  law  ;  for 
there  being  a  consideration,  the  parties  are  left  to  estimate  its 
value  :  though  here  the  courts  of  equity  will  step  in  to  relieve 
from  gross  inadequacy  between  the  consideration  and  the 
promise. 

These  principles  are  deduced  from  the  general  current  of 
decided  cases  upon  the  subject,  as  well  as  from  the  known 
maxims  of  the  common  law.  The  general  position,  that  moral 
obligation  is  a  sufficient  consideration  for  an  express  promise, 
is  to  be  limited  in  its  application  to  cases  where  at  some  time 
or  other  a  good  or  valuable  consideration  has  existed. 
"S  legal  obligation  is  always  a  sufficient  consideration  to  sup- 
port either  an  express  or  an  implied  promise  ;  such  as  an  in- 
fant's debt  for  necessaries,  or  a  father's  promise  to  pay  for  the 
support  and  education  of  his  minor  children.  But  when  the 
child  shall  have  attained  to  manhood,  and  shall  have  become 
his  own  agent  in  the  world's  business,  the  debts  he  incurs, 
whatever  may  be  their  nature,  create  no  obligation  ;  and  it 
seems  to  follow,  that  a  promise  founded  upon  such  a  debt  has 
no  legally  binding  force. 

The  cases  of  instruments  under  seal  and  certain  mercantile 
contracts,  in  which  considerations  need  not  be  proved,  do  not 
contradict  the  principles  above  suggested.  The  first  import  a 
consideration  in  themselves,  and  the  second  belong  to  a  branch 
of  the  mercantile  law,  which  has  found  it  necessary  to  disregard 
the  point  of  consideration  in  respect  to  instruments  negotiable 
in  their  nature  and  essential  to  the  interests  of  commerce. 

Instead  of  citing  a  multiplicity  of  cases  to  support  the  positions 
I  have  taken,  I  will  only  refer  to  a  very  able  review  of  all  the 
cases  in  the  note  in  3  B.  &  P.  249.  The  opinions  of  the  judges 
had  been  variant  for  a  long  course  of  years  upon  this  subject, 
but  there  seems  to  be  no  case  in  which  it  was  nakedly  decided, 
that  a  promise  to  pay  the  debt  of  a  son  of  full  age,  not  living 
with  his  father,  though  the  debt  were  incurred  by  sickness 
which  ended  in  the  death  of  the  son,  without  a  previous  request 
by  the  father  proved  or  presumed,  could  be  enforced  by  action. 

It  has  been  attempted  to  show  a  legal  obligation  on  the  part 
of  the  defendant  by  virtue  of  our  statute,  which  compels  lineal 
kindred  in  the  ascending  or  descending  line  to  support  such  of 
their  poor  relations  as  are  likely  to  become  chargeable  to  the 
town  where  they  have  their  settlement.  But  it  is  a  sufficient 
answer  to  this  position,  that  such  legal  obligation  does  not  exist 
except  in  the  very  cases  provided  for  in  the  statute,  and  never 
until  the  party  charged  has  been  adjudged  to  be  of  sufficient 
ability  thereto.     We  do  not  know  from   the   report  any  of  the 


640  LITTLEFIELD   V.   SHEE.  [chap,  I. 

facts  which  are  necessary  to  create  such  an  obligation.  Whether 
the  deceased  had  a  legal  settlement  in  this  commonwealth  at 
the  time  of  his  death,  whether  he  was  likely  to  become  charge- 
able had  he  lived,  whether  the  defendant  was  of  sufficient  abil- 
ity, are  essential  facts  to  be  adjudicated  by  the  Court  to  which 
is  given  jurisdiction  on  this  subject.  The  legal  liability  does 
not  arise  until  these  facts  have  all  been  ascertained  by  judg- 
ment, after  hearing  the  party  intended  to  be  charged. 

For  the  foregoing  reasons  we  are  all  of  opinion  that  the  non- 
suit directed  by  the  Court  of  Common  Pleas  was  right,  and 
that  judgment  be  entered  thereon  for  costs  for  the  defendant. 


LITTLEFIELD,    Executrix   of   JOHN    LITTLEFIELD,   v. 
ELIZABETH    SHEE. 

In  the  King's  Bench,  November  4,  1831. 

[Reported  in  2  Barnewall  &^  Adolphus  Sii.J 

Assumpsit  for  goods  sold  and  delivered.  The  fourth  count 
stated  that  John  Littlefield,  in  his  lifetime,  at  the  special  in- 
stance and  request  of  the  defendant,  had  supplied  and  delivered 
to  her  divers  goods  and  chattels  for  the  sum  of  ^16  ;  and  there- 
upon, in  consideration  of  the  premises,  and  of  the  said  sum  of 
money  being  due  and  unpaid,  the  defendant,  after  the  death  of 
the  said  John  Littlefield,  undertook  and  promised  the  plaintiff, 
as  executrix  of  John  Littlefield,  to  pay  her  the  said  sum  of 
money  as  soon  as  it  was  in  her  (the  defendant's)  power  so  to 
do  ;  and,  although  afterward,  to  wit,  on,  etc.,  at,  etc.,  it  was 
in  her  power  to  pay  the  said  sum,  yet  she  did  not  do  so.  Plea, 
the  general  issue.  At  the  trial  before  Gaselee,  J.,  at  the  last 
assizes  for  Sussex,  it  appeared  that  the  action  was  brought  to 
recover  ^^15  for  butcher's  meat  supplied  by  the  testator  to  the 
defendant,  for  her  own  use,  between  September,  1825,  and 
March,  1826.  During  that  time  the  defendant  was.  a  married 
woman,  but  her  husband  was  abroad.  After  his  death  she 
promised  to  pay  the  debt  when  it  should  be  in  her  power,  and 
her  ability  to  pay  was  proved  at  the  trial.  The  learned  judge 
held  that  the  defendant  having  been  a  feme  covert  at  the  time 
when  the  goods  were  supplied,  her  husband  was  originally 
liable,  and,  consequently,  there  was  no  consideration  for  the 
promise  declared  upon.  The  plaintiff  was  therefore  nonsuited. 
Hutchinson  on  a  former  day  in  this  term  moved  to  set  aside  the 


SEC.  u/i.]  EASTWOOD   V.   KENYON.  64 1 

nonsuit,  and  to  enter  a  verdict  for  the  plaintiff  on  the  fourth 
count  ;  on  the  ground  that,  the  goods  having  been  supplied  to 
the  defendant  while  she  was  living  separate  from  her  husband, 
she  was  under  a  moral  obligation  to  pay  for  them,  and  such 
obligation  was  a  sufficient  consideration  for  a  subsequent  prom- 
ise. It  was  not  necessary  that  there  should  have  been  an  ante- 
cedent legal  obligation.      Barnes  v.  Hedley,'  Lee  v.  Muggeridge." 

Lord  Tenterden,  C.J.,  now  delivered  the  judgment  of  the 
Court.  The  fourth  count  of  the  declaration  states  that  the 
testator  had,  at  the  request  of  the  defendant,  supplied  her  with 
goods,  and  that  in  consideration  of  the  premises,  and  of  the 
price  of  the  goods  being  due  and  unpaid,  the  defendant  prom- 
ised. Now  that  is  in  substance  an  allegation  that  those  sums 
were  due  from  her,  and  the  plaintiff  failed  in  proof  of  that 
allegation,  because  it  appeared  that  the  goods  were  supplied  to 
her  while  her  husband  was  living,  so  that  the  price  constituted 
a  debt  due  fjpjn^  him.  We  are,  therefore,  of  opinion  that  the 
declaration  was  not  supported  by  the  proof,  and  that  the  non- 
suit was  light.  In  Lee  v.  Muggeridge,'  all  the  circumstances 
which  showed  that  the  money  was,  in  conscience,  due  from  the 
defendant  were  correctly  set  forth  in  the  declaration.  It  there 
appeared  upon  the  record  that  the  money  was  lent  to  her, 
though  paid  to  her  son-in-law,  while  she  was  a  married  woman, 
and  that  after  her  husband's  death,  she,  knowing  all  the  cir- 
cumstances, promised  that  her  executor  should  pay  the  sum 
due  on  the  bond.  I  must  also  observe  that  the  doctrine  that  a 
moral  obligation  is  a  sufficient  consideration  for  a  subsequent 
promise  is  one  which  should  be  received  with  some  limitation. 

Rule  refused. 


EASTWOOD  V.   KENYON. 

In  the  Queen's  Bench,  January  16,  1840, 

[Repor/ed  m  11  Adolphns  &^  Ellis  438. J 

Assumpsit.  The  declaration  stated  that  one  John  Sutcliffe 
made  his  will,  and  appointed  plaintiff  executor  thereof,  and 
thereby  bequeathed  certain  property  in  manner  therein  men- 
tioned ;  that  he  afterward  died  without  altering  his  will,  leaving 
one  Sarah  Sutcliffe,  an  infant,  his  daughter  and  only  child  and 
heiress  at  law,  surviving  ;  that  after  making  the  will  John  Sut- 
cliffe sold  the  property  mentioned  therein,  and  purchased  a 
piece  of  land  upon  which  he  erected  certain  cottages,  but  the 

'  2  Taunt.  184.  «  5  Taunt.  36,  »  Ibid. 


642  EASTWOOD   V.    KENYON.  [CHAP.  1. 

same  were  not  completed  at  the  time  of  his  death,  which  piece 

of  land  and  cottages  were  at  the  time  of  his  death  mortgaged 

J      by  him  ;  that  he  died  intestate  in  respect  of  the  same,  where- 

*/(upon  the  equity  of  redemption  descended  to  the  said  infant  as 

'heiress,  at  law  ;  that  after  the  death  of  John  Sutcliffe,  plaintiff 
duly  proved  the  will  and  administered  to  the  estate  of  the  de- 
ceased ;  that  from  and  after  the  death  of  John  Sutcliffe  until 
the  said  Sarah  Sutcliffe  came  of  full  age,  plaintiff,  executor  as 
aforesaid,  "acted  as  the  guardian  and  agent"  of  the  said  in- 
fant, and  in  that  capacity  expended  large  sums  of  money  in  and 
about  her  maintenance  and  education,  and  in  and  about  the 
completion,  management,  and  necessary  improvement  of  the 
said  cottages  and  premises  in  which  the  said  Sarah  Sutcliffe 
was  so  interested,  and  in  paying  the  interest  of  the  mortgage 
money  chargeable  thereon  and  otherwise  relative  thereto,  the 
said  expenditure  having  been  made  in  a  prudent  and  useful 
manner,  and  having  been  beneficial  to  the  interest  of  the  said 
Sarah  Sutcliffe  to  the  full  amount  thereof  ;  that  the  estate  of 
John  Sutcliffe  deceased  having  been  insufficient  to  allow  plain- 
tiff to  make  the  said  payments  out  of  it,  plaintiff  was  obliged  to 
advance  out  of  his  own  moneys,  and  did  advance,  a  large  sum, 
to  wit,  ^140,  for  the  purpose  of  the  said  expenditure  ;  and,  in 
order  to  reimburse  himself,   was  obliged  to  borrow,   and   did 

(borrow,  the  said  sum  of  one  A.  Blackburn,  and,  as  a  security, 
made  his  promissory  note  for  payment  thereof  to  the  said 
A.  Blackburn  or  his  order  on  demand  with  interest  ;  which 
sum,  so  secured  by  the  said  promissory  note,  was  at  the  time 
of  the  making  thereof  and  still  is  wholly  due  and  unpaid  to  the 
said  A.  Blackburn  ;  that  the  said  sum  was  expended  by  plain- 
tiff in  manner  aforesaid  for  the  benefit  of  the  said  Sarah  Sut- 
cliffe, who  received  all  the  benefit  and  advantage  thereof,  and 
such  expenditure  was  useful  and  beneficial  to  her  to  the  full 
amount  thereof  ;  that  when  the  said  Sarah  Sutcliffe  came  of 
full  age  she  had  notice  of  the  premises,  and  then  assented  to 
the  loan  so  raised  by  plaintiff,  and  the  security  so  given  by 
him,  and  requested  plaintiff  to  give  up  to  one  J.  Stansfield  as 
her  agent,  the  control  and  management  of  the  said  property, 
and  then  promised  the  plaintiff  to  pay  and  discharge  the  amount 
^    .of  the  said  note  ;  and  thereupon  caused  one  year's  interest  upon 

I  the  said  sum  of  ^^140  to  be  paid  to  A.  Blackburn.  That  there- 
upon plaintiff  agreed  to  give  up,  and  did  then  give  up,  the  con- 
trol and  management  of  the  property  to  the  said  agent  on  behalf 
of  the  said  Sarah  Sutcliffe  ;  that  all  the  services  of  plaintiff  were 
done  and  given  by  him  for  the  said  Sarah  Sutcliffe,  and  for  her 
benefit,  gratuitously  and   without  any  fee,   benefit,  or  reward 


SEC.  I!//.]  EASTWOOD   Z'.    KEN  YON.  643 

whatsoever  ;  and  the  said  services  and  expenditure  were  of 
great  benefit  to  her,  and  her  said  property  was  increased  in 
value  by  reason  thereof  to  an  amount  far  exceeding  the  said 
^^140.  That  afterward  defendant  intermarried  with  the  said 
Sarah  Sutcliffe,  and  had  notice  of  the  premises,  and  the  ac- 
counts of  plaintiff  of  and  concerning  the  premises  were  then 
submitted  to  defendant,  who  then  examined  and  assented  to 
the  same,  and  upon  such  accounting  there  was  found  to  be  due 
to  plaintiff  a  large  sum  of  money,  to  wit,  etc.,  for  moneys  so 
expended  and  borrowed  b}'  him  as  aforesaid  ;  and  it  also  then 
appeared  that  plaintiff  was  indebted  to  A.  Blackburn  in  the 
amount  of  the  said  note.  That  defendant,  in  right  of  his  wife, 
had  and  received  all  the  benefit  and  advantage  arising  from  the 
said  services  and  expenditure.  That  thereupon  in  considera- 
tion of  the  premises  defendant  promised  plaintiff  that  he  would// 
pay  and  discharge  the  amount  of  the  said  promissory  note  ; 
but  that,  although  a  reasonable  time  for  paying  and  discharging 
the  said  note  had  elapsed,  and  A.  Blackburn,  the  holder  thereof, 
was  always  willing  to  accept  payment  from  defendant,  and 
defendant  was  requested  by  plaintiff  to  pay  and  discharge  the 
amount  thereof,  defendant  did  not,  nor  would  then,  or  at  any 
other  time  pay  or  discharge  the  amount,  etc.,  but  wholly  re- 
fused, etc. 

Plea^  JVon  assumpsit. 

On  the  trial  before  Patteson,  J.,  at  the  York  spring  assizes, 
1838,  it  was  objected  on  the  part  of  the  defendant  that  the 
promise  stated  in  the  declaration,  and  proved,  was  a  promise  to 
pay  the  debt  of  another  within  the  Statute  of  Frauds,  29  Car.  2, 
ch.  3,  §  4,  and  ought  to  have  been  in  writing  ;  on  the  other 
hand,  it  was  contended  that  such  defence,  if  available  at  all, 
was  not  admissible  under  the  plea  of  non  assiitnpsit.  The  learned 
judge  was  of  the  latter  opinion,  and  the  plaintiff  had  a  verdict, 
subject  to  a  motion  to  enter  a  verdict  for  the  defendant. 

Cresswell,  in  the  following  term,  obtained  a  rule  nisi  according 
to  the  leave  reserved,  and  also  for  arresting  judgment  on  the 
ground  that  the  declaration  showed  no  consideration  for  the 
promise  alleged.     In  Trinity  Vacation,  1839,' 

Alexander  and   W.  H.  Watson  showed  cause. 

Cresswell,  contra. 

Lord  Denman,  C.J.  The  first  point  in  this  case  arose  on  the 
fourth  section  of  the  Statute  of  Frauds — viz.,  whether  the  prom- 
ise of  the  defendant  was  to  "  answer  for  the  debt,  default,  or 
miscarriage  of  another  person. ' '     Upon  the  hearing  we  decided, 

'  June  19th.  Before  Lord  Denman,  C.J.,  Patteson,  Williams,  and  Cole- 
ridge, J  J. 


644  EASTWOOD   V.   KENYON.  [CHAP.  I. 

in  conformity  with  the  case  of  Buttemere  v.  Hayes,*  that  this 
defence  might  be  set  up  under  the  plea  of  ?ion  assuvipsit. 

The  facts  were  that  the  plaintiff  was  liable  to  a  Mr.  Blackburn 
on  a  promissory  note  ;  and  the  defendant,  for  a  consideration, 
which  may  for  the  purpose  of  the  argument  be  taken  to  have 
been  suflficient,  promised  the  plaintiff  to  pay  and  discharge  the 
note  to  Blackburn.  If  the  promise  had  been  made  to  Black- 
burn, doubtless  the  statute  would  have  applied  ;  it  would  then 
have  been  strictly  a  promise  to  answer  for  the  debt  of  another  ; 
and  the  argument  on  the  part  of  the  defendant  is,  that  it  is  not 
less  the  debt  of  another  because  the  promise  is  made  to  that 
other — viz.,  the  debtor,  and  not  to  the  creditor,  the  statute  not 
having  in  terms  stated  to  whom  the  promise,  contemplated  by  it, 
is  to  be  made.  But  upon  consideration  we  are  of  opinion  that 
(the  statute  applies  only  to  promises  made  to  the  person  to  whom 
*  i 'another  is  answerable.  We  are  not  aware  of  any  case  in  which 
the  point  has  arisen,  or  in  which  any  attempt  has  been  made  to 
put  that  construction  upon  the  statute  which  is  now  sought  to 
be  established,  and  which  we  think  not  to  be  the  true  one. 

The  second  point  arose  in  arrest  of  judgment  —  namely, 
whether  the  declaration  showed  a  suflficient  consideration  for 
the  promise.  It  stated,  in  effect,  that  the  plaintiff  was  executor 
under  the  will  of  the  father  of  the  defendant's  wife,  who  had 
died  intestate  as  to  his  real  estate,  leaving  the  defendant's  wife, 
an  infant,  his  only  child  ;  that  the  plaintiff  had  voluntarily  ex- 
pended his  money  for  the  improvement  of  the  real  estate,  while 
the  defendant's  wife  was  sole  and  a  minor  ;  and  that,  to  reim- 
burse himself,  he  had  borrowed  money  of  Blackburn,  to  whom 
he  had  given  his  promissory  note  ;  that  the  defendant's  wife, 
while  sole,  had  received  the  benefit,  and,  after  she  came  of  age, 
assented  and  promised  to  pay  the  note,  and  did  pay  a  year's 
interest  ;  that  after  the  marriage  the  plaintiff's  accounts  were 
shown  to  the  defendant,  who  assented  to  them,  and  it  appeared 
that  there  was  due  to  the  plaintiff  a  sum  equal  to  the  amount 
of  the  note  to  Balckburn  ;  that  the  defendant  in  right  of  his 
wife  had  received  all  the  benefit,  and,  in  consideration  of  the 
premises,  promised  to  pay  and  discharge  the  amount  of  the 
note  to  Blackburn. 

Upon  motion  in  arrest  of  judgment,  this  promise  must  be 
taken  to  have  been  proved,  and  to  have  been  an  express  promise, 
as  indeed  it  must  of  necessity  have  been,  for  no  such  implied 
promise  in  law  was  ever  heard  of.  It  was  then  argued  for  the 
plaintiff  that  the  declaration  disclosed  a  sufficient  moral  consid- 
eration to  support  the  promise. 

'  5  Mee.  &  W.  456. 


SEC.  u/i.]  EASTWOOD   V.    KENYON.  645 

Most  of  the  older  cases  on  this  subject  are  collected  in  a 
learned  note  to  the  case  of  Wennall  z'.  Adney,"  and  the  conclu- 
sion there  arrived  at  seems  to  be  correct  in  general,  "  that  an 
express  promise  can  only  revive  a  precedent  good  consideration, 
-which  might  have  been  enforced  at  law  through  the  medium  of 
an  implied  promise,  had  it  not  been  suspended  by  some  positive 
rule  of  law  ;  but  can  give  no  original  cause  of  action,  if  the 
obligation,  on  which  it  is  founded,  never  could  have  been  en-[ 
forced  at  law,  though  not  barred  by  any  legal  maxim  or  statute 
provision."  Instances  are  given  of  voidable  contracts,  as  those 
of  infants  ratified  by  an  express  promise  after  age,  and  distin- 
guished from  void  contracts,  as  of  married  women,  not  capable 
of  ratification  by  them  when  widows  ;  Llo3'^d  v.  Lee  ;"  debts  of 
bankrupts  revived  by  subsequent  promise  after  certificate,  and 
similar  cases.  Since  that  time  some  cases  have  occurred  upon 
this  subject,  which  require  to  be  more  particularly  examined. 
Barnes  7>.  Hedley'  decided  that  a  promise  to  repay  a  sum  of 
money,  with  legal  interest,  which  sum  had  originally  been  lent 
on  usurious  terms,  but,  in  taking  the  account  of  which,  all 
usurious  items  had  been  by  agreement  struck  out,  was  binding. 
Lee  V.  Muggeridge*  upheld  an  assumpsit  by  a  widow  that  her 
executors  should  pay  a  bond  given  by  her  while  d^feme  covert  to 
secure  money  then  advanced  to  a  third  person  at  her  request. 
On  the  latter  occasion  the  language  of  Mansfield,  C.J.,  and  of 
the  whole  Court  of  Common  Pleas,  is  very  large,  and  hardly 
susceptible  of  any  limitation.  It  is  conformable  to  the  expres- 
sions used  by  the  judges  of  this  Court  in  Cooper  v.  Marten,^ 
where  a  stepfather  was  permitted  to  recover  from  the  son  of 
his  wife,  after  he  had  attained  his  full  age,  upon  a  declaration 
for  necessaries  furnished  to  him  while  an  infant,  for  which, 
after  his  full  age,  he  promised  to  pay.  It  is  remarkable  that  in 
none  of  these  there  was  any  allusion  made  to  the  learned  note 
in  3  Bosanquet  &  Puller  above  referred  to,  and  which  has  been 
very  generally  thought  to  contain  a  correct  statement  of  the 
law.  The  case  of  Barnes  v.  Hedley'  is  fully  consistent  with  the 
doctrine  in  that  note  laid  down.  Cooper  v.  Martin'  also,  when 
fully  examined,  will  be  found  not  to  be  inconsistent  with  it. 
This  last  case  appears  to  have  occupied  the  attention  of  the 
Court  much  more  in  respect  of  the  supposed  statutable  liability 
of  a  stepfather,  which  was  denied  by  the  Court,  and  in  respect 

'  3  B.  &  P.  249.  ="  I  Stra.  94.  '  2  Taunt.  184. 

■•  5  Taunt.  36.  On  a  previous  suit  in  equity  to  declare  the  bond  a  charge 
on  the  separate  estate  of  the  testatrix,  the  Master  of  the  Rolls  had  refused 
relief.     S.  C.  i  V.  &  B.  iiS. 

'  4  East,  76.  '  3  Taunt.  184.  '4  East,  76. 


646  EASTWOOD   V.    KENYON.  [CHAP.  I. 

of  what  a  court  of  equity  would  hold  as  to  a  stepfather's  liabil- 
ity, and  rather  to  have  assumed  the  point  before  us.  It  should, 
however,  be  observed  that  Lord  Ellenborough  in  giving  his 
judgment  says  :  "  The  plaintiff  having  done  an  act  beneficial 
for  the  defendant  in  his  infancy,  it  is  a  good  consideration  for 
the  defendant's  promise  after  he  came  of  age.  Ln  such  a  case 
the  law  will  imply  a  request,  and  the  fact  of  the  promise  has 
been  found  by  the  jury  ;"  and  undoubtedly  the  action  would 
have  lain  against  the  defendant  while  an  infant,  inasmuch  as  it 
was  for  necessaries  furnished  at  his  request,  in  regard  to  which 
the  law  raises  an  implied  promise.  The  case  of  Lee  v.  Mug- 
geridge'  must,  however,  be  allowed  to  be  decidedly  at  variance 
with  the  doctrine  in  the  note  alluded  to,  and  is  a  decision  of 
great  authority.  It  should,  however,  be  observed  that  in  that 
case  there  was  an  actual  request  of  the  defendant  during  cover- 
ture, though  not  one  binding  in  law  ;  but  the  ground  of  decision 
there  taken  was  also  equally  applicable  to  Littlefield  7>.  Shee," 
tried  by  Gaselee,  J.,  at  N.  P.,  when  that  learned  judge  held, 
notwithstanding,  that  "  the  defendant  having  been  a  married 
woman  when  the  goods  were  supplied,  her  husband  was  orig- 
inally liable,  and  there  was  no  consideration  for  the  promises 
declared  upon."  After  time  taken  for  deliberation  this  Court 
refused  even  a  rule  to  show  cause  why  the  nonsuit  should  not 
be  set  aside.  Lee  v.  Muggeridge^  was  cited  on  the  motion,  and 
was  sought  to  be  distinguished  by  Lord  Tenterden,  because 
there  the  circumstances  raising  the  consideration  were  set  out 
truly  upon  the  record  ;  but  in  Littlefield  v.  Shee  the  declaration 
stated  the  consideration  to  be  that  the  plaintiff  had  supplied  the 
defendant  with  goods  at  her  request,  which  the  plaintiff  failed 
in  proving,  inasmuch  as  it  appeared  that  the  goods  were  in 
point  of  law  supplied  to  the  defendant's  husband,  and  not  to 
her.  But  Lord  Tenterden  added  that  the  doctrine  that  a  moral 
obligation  is  a  sufficient  consideration  for  a  subsequent  promise 
is  one  which  should  be  received  with  some  limitation.  This 
sentence,  in  truth,  amounts  to  a  dissent  from  the  authority  of 
Lee  V.  Muggeridge,^  where  the  doctrine  is  wholly  unqualified. 

The  eminent  counsel  who  argued  for  the  plaintiff  in  Lee  v. 
Muggeridge^  spoke  of  Lord  Mansfield  as  having  considered  the 
rule  of  nuduvi  pactum  as  too  narrow,  and  maintained  that  all 
promises  deliberately  made  ought  to  be  held  binding.  I  do 
not  find  this  language  ascribed  to  him  by  any  reporter,  and  do 
not  know  whether  we  are  to  receive  it  as  a  traditional  report, 

'  5  Taunt.  36.  4  5  Taunt.  36. 

"  2  B.  &  Ad.  811.  5  Ibid. 

3  5  Taunt.  36. 


SEC.  u/i.]  EASTWOUD    V.    KENVUN.  647 

or  as  a  deduction  from  what  he  does  appear  to  have  laid  down. 
If  the  latter,  the  note  to  Wennall  r.  Adney'  shows  the  deduction 
to  be  erroneous.  If  the  former,  Lord  Tenterden  and  this  Court 
declared  that  they  could  not  adopt  it  in  Littlefield  :>.  Shee.' 
Indeed  the  doctrine  would  annihilate  the  necessity  for  any 
consideration  at  all,  inasmuch  as  the  mere  fact  of  giving  a 
promise  creates  a  moral  obligation  to  perform  it. 

The  enforcement  of  such  promises  by  law,  however  plausibly 
reconciled  by  the  desire  to  effect  all  conscientious  engagements, 
might  be  attended  with  mischievous  consequences  to  society  ; 
one  of  which  would  be  the  frequent  preference  of  voluntary 
undertakings  to  claims  for  just  debts.  Suits  would  thereby  be 
multiplied,  and  voluntary  undertakings  would  also  be  multi- 
plied, to  the  prejudice  of  real  creditors.  The  temptations  of 
executors  would  be  much  increased  by  the  prevalence  of  such  a 
doctrine,  and  tlie  faithful  discharge  of  their  duty  be  rendered 
more  difficult. 

Taking,  then,  the  promise  of  the  defendant,  as  stated  on  this 
record,  to  have  been  an  express  promise,  we  find  that  the  con- 
sideration for  it  was  past  and  executed  long  before,  and  yet  it 
is  not  laid  to  have  been  at  the  request  of  the  defendant,  nor 
even  of  his  wife  while  sole  (though  if  it  had,  the  case  of  Mitchin- 
son  V.  Hewson^  shows  that  it  would  not  have  been  sufficient), 
and  the  declaration  really  discloses  nothing  but  a  benefit  volun- 
tarily conferred  by  the  plaintiff  and  received  by  the  defendant, 
with  an  express  promise  by  the  defendant  to  pay  money. 

If  the  subsequent  assent  of  the  defendant  could  have  amounted  . 
to  a  ratihabitio,  the  declaration  should  have  stated  the  money  to 
have  been  expended  at  his  request,  and  the  ratification  should 
have  been  relied  on  as  matter  of  evidence  ;  but  this  was  obvi- 
ously impossible,  because  the  defendant  was  in  no  way  con- 
nected with  the  property  or  with  the  plaintiff,  when  the  money 
was  expended.  If  the  ratification  of  the  wife  while  sole  were 
relied  on,  then  a  debt  from  her  would  have  been  shown,  and 
the  defendant  could  not  have  been  charged  in  his  own  right 
without  some  further  consideration,  as  of  forbearance  after 
marriage,  or  sometliing  of  that  sort  ;  and  then  another  point 
would  have  arisen  upon  the  Statute  of  Frauds  which  did  not 
arise  as  it  was,  but  which  might  in  that  case  have  been  available  ' 
under  the  plea  of  jwn  assumpsit. 

In  holding  this  declaration  bad  because  it  states  no  consider- 
ation but  a  past  benefit  not  conferred  at  the  request  of  the  de- 
fendant, we  conceive  that  we  are  justified  by  the  old  common 
law  of  England. 

•3B.  &P.  249.  »2B.  &Ad.  Sii.  »  7  T.  R.  34S. 


648  SNEVILY   V.    READ.  [CHAP.  i. 

Lampleigh  v.  Brathwait'  is  selected  by  Smith'  as  the  leading 
case  on  this  subject,  which  was  there  fully  discussed,  though 
not  necessary  to  the  decision.  Hobart,  C.J.,  lays  it  down  that 
"  a  mere  voluntary  courtesy  will  not  have  a  consideration  to 
uphold  an  assumpsit.  But  if  that  courtesy  were  moved  by  a  suit 
or  request  of  the  party  that  gives  the  assumpsit^  it  will  bind  ;  for 
the  promise,  though  it  follows,  yet  it  is  not  naked,  but  couples 
itself  with  the  suit  before,  and  the  merits  of  the  party  procured 
by  that  suit  ;  which  is  the  difference  ;"  a  difference  brought 
fully  out  by  Hunt  v.  Bate,^  there  cited  from  Dyer,  where  a 
promise  to  indemnify  the  plaintiff  against  the  consequences  of 
having  bailed  the  defendant's  servant,  which  the  plaintiff  had 
done  without  request  of  the  defendant,  was  held  to  be  made 
without  consideration  ;  but  a  promise  to  pay  ^20  to  plaintiff, 
who  had  married  defendant's  cousin,  but  at  defendant's  special 
instance,  was  held  binding. 

The  distinction  is  noted,  and  was  acted  upon,  in  Townsend  v. 
Hunt,*  and  indeed  in  numerous  old  books  ;  while  the  principle 
of  moral  obligation  does  not  make  its  appearance  till  the  days 
of  Lord  Mansfield,  and  then  under  circumstances  not  incon- 
sistent with  this  ancient  doctrine  when  properly  explained. 

Upon  the  whole,  we  are  of  opinion  that  the  rule  must  be  made 
absolute  to  arrest  the  judgment. 

Rule  to  enter  verdict  for  defendant  discharged.  - 

Rule  to  arrest  judgment  absolute. 


SNEVILY  V.  READ. 

In  the  Supreme  Court   of   Pennsylvania,   May  Term,   1840^ 

[Reported  zn  <)  ^F«//^  396.] 

Error  to  the  Common  Pleas  of  Dauphin  County. 

Alexander  Read,  surviving  James  Gray,  v.  John  Snevily. 
This  was  an  action  of  assumpsit  in  which  the  following  declara- 
tion was  filed  : 

"John  Snevily,  late  of  the  county  aforesaid,  yeoman,  was 
summoned  to  answer  Alexander  Read,  surviving  James  Gray, 
deceased,  of  a  plea  of  trespass  on  the  case,  etc.  Whereupon 
the  said  Alexander,  by  his  attorney,  complains  that  whereas,  on 
March   15th,  1836,  a.d. ,  Alexander  Read  aforesaid,  and  James 

'  Hob.  105.  3  Dyer,  i-]2a. 

■^  I  Smith's  Leading  Cases,  67.  *  Cro.  Car.  40S. 


SEC.  ll/t.]  SNEVILY   t'.    READ.  649 

Gray,  under  the  name  and  firm  of  Read  &  Gray,  recovered  a 
judgment  in  the  Common  Pleas  of  the  county  of  Schuylkill, 
against  the  said  John  Snevily,  for  the  sum  of  $285.82  debt,  and 
$5.62  costs,  being  numbered  on  the  records  of  said  Court  62, 
of  March  Term,  1830,  a.d.;  and  whereas  a  writ  of  execution 
called  a  testatum  capias  ad  satisfaciendum  was  sued  out  by  said 
Read  &  Gray  upon  said  judgment,  directed  to  the  sheriff  of  the 
county  of  Dauphin,  No.  75  of  July  Term,  1832,  against  him  the 
said  John  Snevily,  for  the  said  debt  and  costs,  and  the  said  writ 
of  execution  being  delivered  to  the  said  sheriff  of  Dauphin 
County,  he,  the  said  sheriff,  arrested  the  said  John  Snevily  at 
Harrisburg,  in  the  said  county  of  Dauphin,  before  the  return 
day  of  the  said  writ  of  execution,  to  wit,  on  June  27th,  1832, 
A.D.,  and  the  said  John  Snevily,  being  then  and  there  so 
arrested,  and  in  custody  of  the  said  sheriff,  Samuel  Shoch, 
Esq.,  the  attorney  for  the  said  Read  &  Gray,  at  the  special  in- 
stance and  request  of  him,  the  said  John  Snevily,  discharged 
him,  the  said  John  Snevily,  from  the  arrest  and  custody  of  the 
said  sheriff  on  the  said  execution,  without  the  said  John  Snevily 
having  paid  or  satisfied  the  said  debt  and  cost  or  any  part 
thereof,  and  the  said  sheriff  then  and  there  made  return  of  the 
said  writ  of  execution,  to  the  said  Court  of  Common  Pleas  of 
Schuylkill  County  that  he  had  taken  the  body  of  the  said  John 
Snevily,  and  that  he,  the  said  John  Snevily,  was  discharged  by 
S.  Shoch,  Esq.,  attorney  for  the  said  Read  &  Gray,  whereby 
the  said  judgment  of  them,  the  said  Read  &  Gray,  against  the 
said  John  Snevily  in  the  said  Court  of  Common  Pleas  of  Schuyl- 
kill County  became  satisfied  and  extinct. 

"  And  whereas,  afterward,  to  wit,  on  January  ist,  1839,  ad., 
at  the  county  aforesaid,  the  said  debt  of  $285.82,  with  interest 
from  the  said  March  15th,  1830,  and  costs,  $8.36,  being  wholly 
unpaid,  he,  the  said  John  Snevily,  well  knowing  the  same,  and 
in  consideration  of  the  said  debt  and  his  being  discharged  from 
arrest  as  aforesaid  by  the  said  plaintiffs,  undertook  and  prom- 
ised to  pay  to  the  said  Alexander  Read,  surviving  James  Gray, 
who  had  deceased,  the  said  sum  or  debt  of  $285.82,  with  lawful 
interest  on  the  same  from  the  said  March  15th,  1830,  and  tlie 
said  costs  when  he  should  be  thereto  required — nevertheless, 
the  said  John  Snevily,  though  often  required,  the  said  debts 
and  cost  unto  him  the  said  Alexander,  hath  not  paid  nor  any 
part  thereof,  but  the  promise  and  undertaking  of  him,  the  said 
John  Snevily,  so  as  aforesaid  made,  wholly  disregarding,  he, 
the  said  John  Snevily,  to  pay  the  said  debt  and  costs  to  him, 
the  said  Alexander  Read,  surviving  the  said  James  Gray,  de- 
ceased, hitherto  hath  refused,  and  still  doth  refuse,  to  the  dam- 


650  SNEVILV   V.    READ,  [cHAP.  I. 

age  of  the  said  Alexander  Read,  $600,  and  therefore  he  brings 
suits,"  etc. 

The  plaintiff  gave  in  evidence  the  record  of  the  original  judg- 
ment ao-ainst  the  defendant,  the  capias  ad  satisfaciendum,  and  the 
return  of  the  sheriff  "discharged  by  S.  Shoch,  attorney  for 
plaintiff,"  and  then  offered  the  foUovi^ing  deposition  of  Samuel 
Shoch,  Esq. 

"  In  pursuance  of  the  annexed  rule  to  take  deposition  on  the 
part  of  the  plaintiff,  personally  appeared  before  me,  Thomas 
Lloyd,  Esq.,  a  justice  of  the  peace  in  and  for  the  county  of 
Lancaster,  Pa.,  aforesaid,  at  my  office  in  Columbia,  Lancaster 
County  aforesaid,  on  Thursday,  November  21st,  1839,  Samuel 
Shoch,  who  being  by  me  first  duly  sworn  according  to  law,  de- 
posed and  said,  that  some  time  before  June,  1832,  but  how  long 
before  he  cannot  exactly  recollect,  he  was  employed  by  the 
firm  of  Read  &  Gray,  of  Philadelphia,  consisting  of  Alexander 
Read  and  James  Gray,  to  collect  a  debt  due  the  firm  by  John 
Snevily,  the  defendant  in  the  above  stated  case,  on  a  judgment 
note  for  $285.82,  which  had  been  entered  on  the  records  of  the 
Court  of  Common  Pleas  of  Schuylkill  County,  to  March  Term, 
1830,  No.  62,  and  also  on  the  records  of  the  Court  of  Common* 
Pleas  of  Dauphin  County,  to  April  Term,  1830,  No.  77,  before 
he  was  so  employed.  That  a  testatum  fieri  facias  3.nd  capias  ad 
satisfacietidum  was  issued  to  Dauphin  County  from  Schuylkill 
County,  to  July  Term,  1832,  which  was  delivered  to  Jacob 
Seller,  Esq.,  sheriff  of  Dauphin  County.  That  John  Snevily 
repeatedly  promised  to  deponent  that  he  would  pay  the  debt, 
interest,  and  costs  due  on  the  said  execution  and  judgment. 
That  on  June  27th,  1832,  Sheriff  Seller  and  John  Snevily  afore- 
said came  to  the  office  of  deponent  in  Hairisburg,  and  the  said 
Snevily  fraudulently  and  falsely  represented  ,that  he  would 
have  funds  in  the  Harrisburg  bank  on  the  following  day,  and 
that  he  would  give  deponent  a  check  on  the  said  bank  for  $150, 
which,  if  paid,  should  be  a  credit  to  that  amount  on  the  judg- 
ment of  Read  &  Gray  against  him  ;  that  deponent  accepted 
the  check  on  those  terms,  and  gave  defendant  a  conditional 
receipt  in  accordance.  That  on  the  day  following  deponent 
presented  the  check  at  the  said  bank  during  banking  hours, 
and  received  for  answer  that  John  Snevily  had  no  funds  there, 
and  there  were  no  funds  there  to  meet  and  pay  the  check  ;  that 
Snevily  on  that  day  or  a  day  or  two  after  absconded  from  Har- 
risburg, and  was  absent  several  months  ;  that  this  deponent  has 
never  received  a  single  cent  in  payment  or  on  account  of  the 
said  debt  or  judgment,  nor  has  the  plaintiff  been  satisfied  or 
paid  in  any  way  or  manner,  so  far  as  this  deponent  is  informed, 


SEC.  II//.]  SNEVILV    V.    READ.  65  I 

nor  has  deponent  nor  plaintiffs  ever  received  a  cent  on  the  said 
check  ;  that  the  above  claim  still  remaining  in  this  deponent's 
hands,  for  collection,  he  (the  deponent)  had  frequent  negotia- 
tions with  the  defendant  Snevily,  relative  to  the  payment  of  the 
said  debt,  in  all  of  which  he  always  admitted  his  indebtedness, 
and  frequently  during  the  years  1836,  1837,  and  1838  he  prom- 
ised to  pay  this  deponent  or  the  plaintiffs  the  whole  amount 
due,  but  has  never  paid  anything.  That  some  time  in  tlie 
winter  of  1836  or  1837  deponent  met  John  Snevily  in  Philadel- 
phia, and  spoke  to  him  about  this  debt,  when  Snevily  told  this 
deponent  that  he  (Snevily)  was  endeavoring  to  compromise  with 
his  creditors  in  Philadelphia,  and  that  he  believed  he  would 
succeed,  but  that  he  would  not  ask  a  compromise  of  the  debt 
due  by  him  to  Read  &  Gray,  for  that  he  intended  to  pay  them 
in  full,  and  which  payment  he  would  make  in  a  short  time. 
James  Gray,  one  of  the  plaintiffs  in  the  judgment  note  on  which 
the  execution  issued,  is  dead,  having  died  before  the  bringing 
of  this  suit.  The  deponent  has  no  interest  in  this  suit  of  any 
kind  either  as  attorney  or  otherwise,  having  given  up  to  James 
M'Cormick,  Esq.,  the  whole  business  before  this  suit  was 
brought,  and  this  deponent  never  had  any  interest  as  attorney 
either  beyond  the  expectation  of  a  fair  compensation  for  his 
professional  services,  about  which  he  had  no  agreement  or  under- 
standing with  his  clients.  In  all  these  promises  of  payment  by 
the  defendant  John  Snevily  to  the  plaintiff  of  the  amount  of 
debt  due  by  him  (Snevil}')  there  has  been  no  condition  annexed, 
but  they  were  always  unqualified  and  absolute." 

Sworn  and  subscribed  before  me  at  my  office,  this  Novem- 
ber 2ist,  1S39,  at  8  o'clock  in  the  evening,  no  person  appearing 
or  attending  to  cross-examine  the  witness.  Thomas  Lloyd, 
Justice  of  the  Peace. 

Defendant  objected  to  this  deposition  for  the  following 
reasons  : 

1.  That  plaintiffs  are  not  entitled  to  recover. 

2.  The  deposition  is  not  admissible  under  the  rule  of  court, 
and  sworn  to  after  made. 

Objections  overruled  and  defendant  excepted. 
The  Court  were  requested  to  charge  the  jury  on  the  following 
points  : 

1,  The  plaintiff's  declaration  contains  no  sufficient  considera- 
tion in  law  to  support  the  promise  and  undertaking  laid,  and 
therefore  the  plaintiff  cannot  recover  in  this  suit. 

2.  The  arrest  and  discharge  of  defendant  on  the  execution  as 
set  out  in  plaintiff's  declaration,  was  a  full  satisfaction  and  dis- 
charge of  the  debt  then  existing  and  now  claimed  in  this  suit. 


6^2  SNEVILY  V.    READ.  [cHAP.  I. 

3.  Tiic  arrest  and  discharge  of  defendant  as  stated  amounted 
to  payment  and  discharge  of  the  debt,  and  any  subsequent 
promise  to  pay  said  debt  was  nudum  pactum  and  void. 

4.  The  arrest  and  discharge  of  defendant,  as  set  out  in  plain- 
tiff's narration,  was  an  extinguishment  of  the  debt,  and  there 
was  no  legal  or  moral  obligation  binding  upon  defendant  in 
relation  to  said  debt  which  would  support  a  promise  to  pay  it. 

5.  Under  the  facts  and  law  of  this  case  the  plaintiff  is  not 
entitled  to  recover. 

The  Court  thus  charged  the  jury  : 

"  It  appears  by  the  evidence  that  the  plaintiff  had  a  judgment 
against  defendant  under  a  capias  ad  satisfaciendum  issued,  on 
which  the  defendant  was  arrested  by  the  sheriff  of  this  county, 
etc.  When  so  arrested,  he  proposed  to  arrange  the  matter  by 
giving  his  check  for  part  ($150)  of  the  debt,  etc.,  promising  to 
pay  the  balance,  in  consideration  of  which  the  attorney  dis- 
charged him  from  the  arrest.  That  his  check  was  presented  to 
the  bank  the  next  day,  but  there  were  no  funds  there  to  meet 
it,  etc.;  that  the  defendant  has  repeatedly  since  promised  to 
pay  the  amount  of  the  judgment.  If  you  find  the  facts  to  be 
as  stated,  the  plaintiff  is  entitled  to  your  verdict.  The  circum- 
stances of  the  original  indebtedness  would  be  a  sufficient  con- 
sideration for  the  promise  to  pay,  which,  if  made,  you  should, 
in  honesty,  compel  the  defendant  to  comply  with,  by  rendering 
a  verdict  for  the  amount  claimed.  The  plaintiff's  remedy  under 
his  former  judgment  is  gone,  in  consequence  of  the  defendant's 
arrest  and  discharge,  and  if  the  plaintiff  could  not  recover  here, 
he  would  lose  an  honest  debt  due  to  him,  in  consequence  of 
having  trusted  to  the  defendant's  promises,  which  he  has  not 
performed. 

"  In  answer  to  the  point  propounded  on  behalf  of  the  de- 
fendant, we  say  : 

"  I.  That  the  plaintiff's  declaration  does  contain  a  sufficient 
consideration  in  law  to  support  the  promise  and  undertaking 
laid,  and  if  proved,  the  plaintiff  can  recover  in  this  suit. 

"  2.  That  the  arrest  and  discharge  was  a  discharge  of  the 
judgment  and  execution,  which  could  not  thereafter  be  further 
proceeded  on,  but  did  not  so  satisfy  the  claim  of  the  plaintiff 
on  defendant,  but  that  the  latter  might  bind  himself  by  promise 
to  pay  it. 

"  3.  That  the  arrest  and  discharge  did  discharge  the  debt  so 
far  as  the  judgment  and  execution  were  concerned,  but  that  a 
subsequent  promise  to  pay  it  was  not  nudum  pactum  and  void. 

"  4.  That  the  arrest  and  discharge  was  an  extinguishment  of 
the  debt  so  far  as  regarded  any  further  proceedings  upon  the 


SEC.  11-^.]  SNEVILV    V.    READ.  C 


DJ 


judgment,  and  that  although  there  was  no  legal  obligation 
binding  on  defendant,  yet  there  was  a  moral  obligation  which 
would  support  a  promise  to  pay  the  debt  to  the  plaintiff  if  he 
made  one. 

"  5.  That  under  tlie  facts  and  law  of  the  case,  if  the  jury 
believe  the  evidence,  which  appears  to  be  uncontradicted,  the 
Court  believe  the  plaintiff  entitled  to  recover,  and  that  not  to 
permit  him  to  do  so  would  not  be  consistent  with  the  honesty 
and  justice  of  the  case,  and  a  due  regard  to  the  law,  which  was 
made  to  bind  parties  to  the  honest  performance  of  the  contracts 
into  which  they  enter." 

Errors  assigned  : 

1.  The  Court  erred  in  overruling  the  objections  to  the  depo- 
sition of  Samuel  Shoch. 

2.  In  their  answer  to  defendant's  points. 
Brown  for  plaintiff  in  error. 

M' Corfiiick  for  defendant  in  error. 

The  opinion  of  the  Court  was  delivered  by 

Sergeant,  J.  A  promise  made  or  security  given  to  the 
plaintiff  by  a  defendant  who  is  in  custody  under  a  capias  ad 
satisfaciendujii,  in  consideration  of  his  discharging  such  defend- 
ant from  custody,  is  binding  ;  and  therefore,  if  in  this  case  the 
plaintiff  discharged  the  defendant  in  consideration  of  the  de- 
fendant giving  him  his  check  for  a  portion  of  the  debt,  the  de- 
fendant would  be  liable  in  an  action  to  recover  the  amount  of 
the  check.  So  if  the  defendant  promised  to  pay  the  debt,  or  a 
portion  of  it,  in  consideration  of  the  discharge.  But  the  posi- 
tion laid  down  by  the  Court  is  much  broader.  It  is,  that  though 
the  arrest  and  discharge  extinguished  the  debt  so  far  as  the 
judgment  and  execution  were  concerned,  yet  a  subsequent 
promise  to  pay  would  not  be  nudum  pactum.  And  again,  that 
there  was  still  a  moral  obligation  which  would  support  a  prom- 
ise. If  the  plaintiff  arrests  a  defendant  on  a  capias  ad  satis- 
faciendum^ and  imprisons  him,  and  then  voluntarily  discharges 
him,  the  law  has  always  considered  it  as  satisfaction  of  the 
debt.  It  is  not  only  an  extinguishment  of  the  judgment,  but  a 
voluntary  release  of  the  means  of  satisfaction,  which,  in  con- 
templation of  law,  are  in  the  hands  of  the  plaintiff,  in  addition 
to  which  it  is  a  release  for  a  price  received,  not  in  money,  but 
in  the  seizure  and  imprisonment  of  the  defendant.  The  com- 
mon law  regards  personal  liberty  as  of  the  highest  price.  Lord 
Hobart,  C.J.,  cites  the  aphorism,  corpus  humanum  nan  rccipit 
estimationetn.  Hob.  59.  Hence  it  has  been  repeatedly  held  that 
the  arrest  of  a  debtor  on  a  capias  ad  satisfaciendum,  and  a  subse- 
quent discharge  from  arrest  by  the  consent  of  the  creditor,  ex- 


654  SXEVILY   V.    READ.  [CHAP.  I. 

tinguishes  tne  judgment.  Ransom  v.  Keyes,  9  Cow.  128.  And 
these  cases,  as  to  the  discharge  of  a  defendant  on  execution, 
proceed  on  the  ground  of  its  being  considered  that  the  plaintiff 
received  satisfaction  in  law  by  having  his  debtor  once  in  custody 
on  execution.  Crary  v.  James,  6  Johns.  51  ;  Yates  v.  Rensse- 
laer, 5  Johns.  364. 
t  Then  what  moral  obligation  is  there  upon  the  debtor  to  pay 
W  a  debt  from  which  his  creditor  has  voluntarily  released  him, 
after  receiving  what  the  law  deems  satisfaction  ?  I  am  not  able 
to  perceive  an}'.  It  is  true  that  it  was  held  in  Willing  v.  Peters, 
12  Serg.  &  Rawle,  182,  that  if  a  debtor  has  been  voluntarily  re- 
leased by  his  creditor,  a  moral  obligation  to  pay  the  debt  still 
exists  sufficient  to  support  a  subsequent  promise  to  pay  the 
debt.  That  case  went  a  great  way  considering  that  writers  on 
moral  law  lay  it  down  that  if  a  creditor  restore  the  instrument 
of  obligation,  or  cancel  or  destroy  it  with  his  own  free  consent, 
and  with  the  privity  of  the  debtor,  it  shall  be  supposed  that  the 
debt  is  forgiven.     Puffendorff,  B.  III.,  ch.  6,  §  16. 

The  present  case,  however,  goes  beyond  that  ;  there  is  satis- 
faction received,  not  only  in  the  imprisonment  of  the  person  of 
^the  defendant,  but  also  in  the  new  security  given  as  a  condition 
or  consideration  of  the  release.  To  that,  therefore,  we  think 
the  plaintiff  must  look,  and  that  a  subsequent  promise  to  pay 
the  judgment  is  without  consideration  and  void  in  law.  The 
case  is  not  like  the  release  of  a  debtor  by  a  bankrupt  or  insol- 
vent act,  or  a  debt  barred  by  the  statute  of  limitations.  These 
discharges  are  all  by  act  of  law  which  does  no  one  an  injury. 
But  in  the  present  case  it  is  by  the  voluntary  act  of  the  party 
himself  and  under  circumstances  entirely  different. 

It  is  true  that  this  kind  of  satisfaction  has  in  our  times  less 
value  than  it  formerly  had  because,  in  the  changes  of  society, 
the  facilities  of  the  debtor  to  procure  his  discharge  from  im- 
prisonment have  been  much  extended,  and  the  creditor  is  now 
obliged  to  look  for  payment  rather  to  the  property  of  his  debtor 
than  to  his  person.  Hence  our  new  code  has  changed  the  law 
on  the  subject,  for  by  §  31  of  the  Act  of  June  i6th,  1836,  relating 
to  executions,  if  the  creditor  discharges  his  debtor  from  im- 
prisonment on  a  capias  ad  satisfaciendum,  at  the  request  of  the 
debtor,  his  remedies  on  the  judgment  are  to  remain  the  same 
as.  if  such  capias  ad  satisfaciendum  had  not  been  issued.  But  the 
case  before  us  occurred  in  the  year  1832,  and  must  be  judged 
by  the  law  as  it  then  stood. 

We  therefore  think  the  Court  erred  in  its  direction  to  the 
jury,  that  a  subsequent  promise  was  binding,  and  that  there 
remained  a  moral  obligation  to  pay  the  debt.     The  plaintiff's 


SEC.  II//.]  ILSLFA-   r.   JEWETT   AND   OTHERS.  655 

cause  of  action   is  on   tlie  ciieck  or  other  engagement   in  cod 
sideration  of  wliich  the  defendant  was  discharged.' 

Judgment  reversed,  and  a  venire  facias  dc  novo  awarded. 


DAVID    ILSLEY   v.  JOHN    JEWETT   and  Others. 

In    the    Supreme   Judicial    Court    of    Massachusetts, 
November  Term,  1S41. 

\^Reportcd  in  3  Mctcalf  ^"iv^.l 

This  was  an  action  of  debt  on  a  bond  for  the  liberty  of  the 
prison  limits,  and  was  submitted  to  the  Court  on  the  following 
facts  agreed  by  the  parties  : 

In  1814  the  plaintiff  paid  money  as  surety  for  John  Jewett, 
one  of  the  defendants,  and  in  1840  brought  a  suit  against  him 
to  recover  back  the  money  so  paid.  Said  Jewett,  among  other 
defences,  relied  on  the  Statute  of  Limitations.  The  plaintiff, 
to  meet  this  part  of  the  defence,  proved  a  part  payment  by  the 
defendant,  in  1S39,  and  by  reason  thereof  recovered  judgment 
against  him  at  November  Term,  1840,  as  stated  and  shown  in 
the  report  of  the  case  of  Ilsley  v.  Jewett,  2  Met.  168,  which  is 
to  be  considered  as  part  of  this  case.  Said  judgment  was  for 
the  sum  of  $349.89  damages,  and  $44.95  costs  of  suit,  and  the 
plaintiff  took  out  execution  thereon,  and  caused  the  defendant 
to  be  committed,  on  said  execution,  to  the  jail  in  Ipswich. 
Said  defendant,  and  his  co-defendants  in  this  suit,  as  his  sure- 
ties, thereupon  gave  bond  for  the  liberty  of  the  prison  limits, 
conditioned  (as  is  required  by  the  Rev.  Stat.  ch.  97,  §  63),  that 
he  would  not  go  without  the  exterior  limits  of  the  prison  until 
he  should  be  lawfully  discharged,  etc.  But  after  the  giving  of 
said  bond,  and  before  the  commencement  of  this  suit,  and  also 
before  he  was  discharged,  he  went,  several  times  without  the 
boundaries  of  the  town  of  Ipswich. 

Defendants  to  be  defaulted,  if  such  going  without  the  bounda- 
ries of  the  town  of  Ipswich  was  a  breach  of  the  condition  of  said 
bond  ;  if  not,  the  plaintiff  to  become  nonsuit. 

O.  P.  Lord  for  the  plaintiff. 

Perkins  {Ward  was  with  him)  for  the  defendants. 

Shaw,  C.J.  In  debt  on  a  prison  bond  given  July  14th,  1S41, 
the  question  is  whether  the  bond  was  broken  by  the  escape  of 
the  prisoner  ;  and  this  again  depends  upon  the  question.  What 
'  A  portion  of  the  opinion  has  been  omitted. — En. 


656  ILSLEY   V,   JEWETT   AND   OTHERS,  [CHAP.  I. 

were  the  prison  limits  of  Ipswich  jail,  for  this  prisoner,  in  1841  ? 
This  depends  upon  Rev.  Stat.,  ch.  14,  §§  13,  14,  prescribing 
different  limits  in  different  cases.  "  On  executions  issuing 
upon  judgments,  recovered  upon  contracts  made  before  April  2d, 
1834,  the  limits  of  each  jail  shall  remain  as  the  same  were  estab- 
lished previously  to  that  day."  §  14.  It  is  conceded  that  prior 
to  1834  the  jail  limits  included  a  space  much  less  than  the 
bounds  of  the  town  of  Ipswich.  If  then  the  contract,  on  which 
the  plaintiff  recovered  his  former  judgment,  in  pursuance  of 
which  the  defendant  was  committed,  was  made  prior  to  April  2d, 
1834,  so  that  the  limits  for  him  were  those  which  existed  in 
1834,  then  the  defendant  made  an  escape,  and  the  bond  was 
forfeited. 

It  appears  that  Adams  and  Ilsley  were  sureties  for  John  Jewett 
on  a  promissory  note  ;  that  Adams  paid  the  whole  in  the  first 
instance  ;  that  afterward  Adams  demanded  of  the  plaintiff  one 
half,  by  way  of  contribution,  as  he  had  a  right  to  do,  and  the 
plaintiff  paid  the  same,  as  he  was  bound  to  do.  On  that  pay- 
ment the  defendant,  John  Jewett,  as  principal  promisor,  became 
indebted  to  the  plaintiff,  and  liable  to  pay  him  the  same  amount 
on  demand.  This  liability  arose  from  the  implied  promise  of 
the  principal,  made  at  the  time  of  the  plaintiff's  becoming  his 
surety,  that,  in  case  the  plaintiff  should  be  called  on  to  pay  any,- 
thing  in  consequence  of  such  suretyship,  the  principal  would 
repay  the  same  on  demand.     (See  Appleton  v.  Bascom,  afite  171.) 

Afterward,  in  1839,  the  transaction  took  place,  as  stated  in 
2  Met.  168,  which  was  held  by  the  Court  sufficient  evidence  of 
part  payment  to  take  the  case  out  of  the  Statute  of  Limitations, 
and  the  plaintiff  had  judgment  ;  and  the  question  is  whether 
this  is  a  judgment  recovered  on  a  contract  made  before  April, 
1834.  The  case  has  been  very  well  argued  on  both  sides,  and 
all  the  authorities,  we  believe,  fully  cited.  The  Court  are  of 
opinion  that  the  judgment  must  be  considered  as  rendered  on 
the  old  contract  ;  that  a  payment,  or  new  promise,  or  an  admis- 
sion from  which  a  new  promise  may  be  inferred,  is  considered 
as  removing  out  of  the  way  a  bar  arising  from  the  Statute  of 
Limitations,  so  as  to  enable  the  creditor  to  recover  notwith- 
standing the  limitation  ;  and  not  as  the  creation  of  a  new  sub- 
stantive contract,  which  is  to  be  the  basis  of  the  judgment. 
We  are  therefore  of  opinion  that  the  facts  show  a  breach  of  this 
bond,  and  that  the  plaintiff  is  entitled  to  recover. 

Defendants  defaulted. 


SEC.  ll/i.]  BEAUMONT  V.    REEVE.  657 

CAROLINE  BEAUMONT  v.   HENRY  REEVE. 

In  the  Queen's  Bench,  January  21,  1846. 

{^Reported  in  8  Queen' s  Bench  Reports  483.] 

Assumpsit.  The  first  count  of  the  declaration  alleged  that, 
whereas,  before  the  making  of  the  promise  of  defendant  after 
mentioned,  defendant  had  seduced  and  debauched  plaintiff,  and 
had  induced  and  procured  her  to  cohabit  with  him  as  his  mis- 
tress for  a  long  time,  to  wit,  five  years,  and  plaintiff,  by  reason 
of  the  premises,  had  been  and  was  greatly  injured  in  her  char- 
acter and  reputation,  and  prejudiced  in  and  deprived  of  the 
means  of  procuring  an  honest  livelihood,  and  otherwise  damni- 
fied ;  and  whereas,  before  and  at  the  time  cf  making  the  prom- 
ise, etc.,  plaintiff  had  ceased  to  cohabit  with,  and  then  lived 
apart  and  separate  from,  defendant  ;  and  thereupon  heretofore, 
to  wit,  on,  etc.,  it  was  agreed  between  plaintiff  and  defendant 
that  they  should  continue  to  live  apart  from  each  other,  and 
that  no  immoral  intercourse  or  connection  should  ever  again 
take  place  between  them  ;  and  defendant,  as  a  compensation 
for  the  injury  so  sustained  by  plaintiff,  and  in  consideration  of 
the  premises,  then  undertook  and  promised  plaintiff  to  allow 
and  pay  her  yearly,  from  the  said  day,  etc.,  during  her  life, 
toward  and  for  her  support  and  maintenance,  an  annuity  of 
^60  ;  that,  although  plaintiff  and  defendant  did  not,  at  any 
time  after  the  making  of  the  promise  of  defendant,  reside  or 
cohabit  together;  yet  defendant,  disregarding,  etc.,  hath  not 
allowed  or  paid  the  annuity,  etc.,  although  often  requested  ; 
and  a  large,  etc.,  to  wit,  ^60  of  the  annuity,  for  one  year,  end- 
ing upon,  etc.,  now  is  due,  etc.  Special  demurrer,  assigning 
for  cause  the  grounds  insisted  on  in  the  argument.     Joinder. 

Crompton  for  the  defendant. 

Banks,  contra. 

Lord  Denman,  C.J.  I  think  Binnington  v.  Wallis,'  connect- 
ing it  with  the  dictum  of  Parke,  B.,  in  Jennings  v.  Brown," 
directly  in  point.  The  moral  consideration,  which  alone  ap- 
pears here,  cannot  support  an  assufnpsit.  That  principle  has 
been  lately  acted  upon  by  this  Court  in  Eastwood  v.  Kenyon,* 
where  we  adopted  the  doctrine  laid  down  in  the  note  to  Wen- 
nail  V.  Adney.*  The  result  is  that  an  express  promise  cannot 
be  supported  by  a  consideration  from  which  the  law  could  not 

'  4  B.  &  Aid.  650.  »iiA.  &E.  438. 

'  9  M.  &  W.  496.  •»  3  B.  &  P.  249,  note  <?. 


658  VALENTINE   V.    FOSTER.  [CHAP.  I. 

imply  a  promise,  except  where  the  express  promise  does  away 
with  a  legal  suspension  or  bar  of  a  right  of  action  which,  but 
for  such  suspension  or  bar,  would  be  valid.  This  result  we 
anived  at  after  much  deliberation,  and  we  now  adhere  to  it. 

Patteson,  J.     This  declaration  appears  to  be  framed  on  a 

view  suggested  by  some  expressions  in   Binnington  v.  Wallis' 

which  point  to  a  distinction  between  that  case  and  cases  where 

the  defendant  is  the  seducer  of  the  plaintiff.      But  looking  at 

Eastwood  V.   Kenyon^  and  Jennings  v.   Brown, ^  it  is  clear  that 

that  circumstance  is  of  no  consequence  as  to  the  legal  right. 

(  The  seduction  could  give  the  plaintiff  no  direct  right  of  action, 

V  land  can  therefore  create  no  liability  of  any  kind  from  which  a 

'  consideration  can  arise. 

Coleridge,  J.  Eastwood  v.  Kenyon,*  which  affirmed  the 
doctrine  in  the  note  to  Wennall  v.  Adney,^  has  established  the 
principle  that  a  moral  consideration  will  not  support  an  assump- 
sit;  there  are  certainly  some  apparent  exceptions  ;  but  here  we 
have  only  to  act  upon  the  general  rule.  In  Binnington  v. 
Wallis'  the  Court  did  indeed  suggest  that  the  previous  fact  of 
the  seduction  might  make  a  distinction,  but  that  clearly  is  not 
so.  The  circumstance  of  previous  seduction  adds  nothing  but 
an  executed  consideration  resting  on  moral  grounds  only. 

WiGHTMAN,  J.  I  felt  some  doubt  in  this  case,  but  on  consid- 
ering the  point  I  agree  that  a  precedent  moral  obligation,  not 
capable  of  creating  an  original  cause  of  action,  will  not  support 
an  express  promise.  And  clearly  on  the  authorities  there  is 
nothing  here  to  raise  any  obligation  beyond  that.  We  there- 
fore must  act  on  the  doctrine  laid  down  in  the  note  to  Wen- 
nall V.  Adney.' 

Judgment  for  defendant. 


JOSEPH   VALENTINE  v.  JAMES    FOSTER. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
October  Term,  1849. 

{Reported  in  \  Metcalf  ^2o.'\ 

Indebitatus  assumpsit  for  money  paid,  etc.  The  report  of 
the  Chief  Justice,  before  whom  the  case  was  tried,  was  in  sub- 
stance this  :  The  plaintiff  was  formerly  owner  of  three  eighths 
of  a  vessel  in  his  own  right,  and  held  two  eighths  thereof  in  his 

'  4  B,  &  Aid.  650.  5  3  B   &  p  249,  note  a. 

"iiA.  &E.  438.  «  4  B.  &  Aid.  650. 

»  9  M.  &  W.  496.  '  3  B.  &  P.  249,  note  a. 
■•  II  A.  &  E.  438. 


SEC.  II//.]  VALENTINE   V.    FOSTER.  659 

name  as  trustee  for  the  defendant.  An  action  was  brought 
against  the  plaintiff  and  others,  as  owners  of  the  vessel,  for  a 
demand  alleged  to  be  due  to  one  Vinal.  In  the  trial  of  that 
action  the  plaintiff  called  the  defendant  as  a  witness,  who  was 
.objected  to  on  the  ground  of  interest  ;  whereupon  the  plaintiff 
executed  and  delivered  to  him  a  release  from  all  liability  to 
contribution  for  any  sum  which  might  be  recovered  in  that  suit, 
and  the  defendant  gave  his  testimony.  Vinal  recovered  judg- 
ment in  that  suit  at  the  March  Term  'of  this  Court  in  Suffolk, 
1S36,  and  the  present  action  was  brought  to  recover  a  part  of 
the  amount  paid  by  the  plaintiff  in  satisfaction  of  that  judgment. 

To  maintain  the  action,  the  plaintiff  offered  to  prove  that 
after  the  trial  of  Vinal's  said  action,  it  appearing  that  the  de- 
fendant's testimony  was  of  little  importance,  the  plaintiff  pro- 
posed to  the  defendant  to  give  him  back  the  release  and  take 
no  advantage  of  it  ;  and  that  the  defendant,  in  reply,  said  it 
would  make  no  difference,  he  would  take  no  advantage  of  it. 

It  was  admitted  that  the  plaintiff  had  no  other  ground  to 
avoid  the  release,  but  a  subsequent  parol  promise  without  any 
new  consideration, 

A  nonsuit  was  entered  subject  to  the  opinion  of  the  whole 
Court. 

H.  H.  Fuller  for  the  plaintiff. 

Shaw,  C.J.  The  single  question  in  this  case  is  whether  a 
pre-existing  liability  to  contribution,  voluntarily  released,  by 
the  party  to  whom  it  is  due,  to  the  party  liable,  in  order  to 
qualify  him  as  a  witness  in  a  trial  at  law,  between  the  releasor 
and  a  third  party,  is  a  good  consideration  for  a  subsequent 
promise  to  pay  such  contribution. 

This  action  is  one  of  new  impression,  and  attempts  to  carry 
the  doctrine  of  legal  liability,  arising  upon  an  express  promise 
made  in  Consideration  of  moral  obligation  somewhat  further 
than  it  has  yet  been  carried. 

It  is  difficult  to  reduce  this  principle  to  a  rule  sufficiently 
accurate  for  practical  use,  on  acount  of  the  looseness  and  un- 
certainty attending  the  notion  of  moral  obligation  or  moral 
duty. 

In  Mills  V.  Wyman,  3  Pick,  207,  where  the  subject  was  largely 
discussed,  it  was  attempted  to  restrain  and  limit  the  generality 
of  the  principle  broadly  laid  down  that  a  moral  obligation  is  a 
sufficient  consideration  for  an  express  promise,  by  confining  it 
to  cases  where  there  has  been  some  pre-existing  legal  obliga- 
tion, which  has  become  inoperative  by  force  of  positive  law  ; 
and  the  cases  of  debts  barred  by  the  Statute  of  Limitations,  by 
a  discharge  under  bankrupt  and  insolvent  laws,  and  debts  in- 


66o  VALENTINE   V.   FOSTER.  [CHAP.  I, 

curred  by  infants  are  put  by  way  of  illustration.  But  it  is  diffi- 
cult to  reconcile  all  the  cases  on  the  subject  upon  this  principle. 
Lee  V.  Muggeridge,  5  Taunt.  36. 

/  In  some  other  cases  another  distinction  has  been  somewhat 
(relied  on,  to  wit,  when  there  is  or  would  be  a  legal  obligation, 
\  I  but  where  the  remedy  is  taken  away  by  positive  law,  or  where 
/  I  the  obligor  is  exempted  from  legal  liability  on  considerations 
of  policy.  The  only  case  I  have  found  where  an  action  has 
been  held  to  lie  upon  an  express  promise  to  pay  a  debt,  which 
had  been  voluntarily  released,  is  that  of  Willing  v.  Peters, 
12  S.  &  R.  177.  It  was  a  case  where  the  debtor,  having  become 
insolvent,  made  an  assignment  for  the  benefit  of  all  his  cred- 
itors, containing  a  clause  of  release  on  the  part  of  the  creditors 
in  consideration  of  the  assignment.  A  dividend  had  been 
received  by  the  plaintiff,  the  creditor,  after  which  the  debtor 
made  an  express  promise  to  pay  the  balance  of  the  debt  when 
he  should  become  able.  There,  although  it  was  argued  that 
the  release  was  voluntarily  made,  and  though  it  actually  ex- 
tinguished the  whole  debt  by  an  instrument  under  seal  which 
imported  a  consideration,  yet  the  analogy  was  so  strong  to  the 
case  of  a  discharge  under  a  bankrupt  or  insolvent  law,  in  which 
it  had  always  been  held,  that  an  action  might  be  maintained  on 
an  express  promise  to  pay  the  balance  of  the  debt  that  the 
Court  decided  in  favor  of  the  plaintiff. 

But  we  think  there  are  several  considerations  which  distin- 
guish the  present  case  from  that  cited. 

We  are  then  to  consider  that  in  becoming  party  to  an  assign- 
ment made  by  an  insolvent  debtor  the  release  is  executed  at  the 
request  and  for  the  benefit  of  the  debtor.  And  it  has  an  im- 
portant bearing,  in  all  those  cases,  that  the  discharge  or  exemp- 
tion, by  which  the  debtor  is  held  not  liable  to  an  action,  is 
created  for  his  benefit.  Then  applying  the  rule  that  a  party 
may  waive  an  exception  made  for  his  benefit,  and  that  he  does 
waive  it  by  an  express  promise,  it  affords  a  strong  legal  ground 
for  the  maintenance  of  an  action  upon  such  express  promise. 
21  Amer.  Jurist,  278  ;  3  Bos.  &  Pul.  249,  note.  But  in  case  of 
a  release  given  in  Court  to  qualify  a  person  as  witness,  the  act 
can  in  no  sense  be  regarded  as  done  at  the  request  or  for  the 
benefit  of  the  releasee.  On  the  contrary,  the  act  is  for  the 
benefit  of  the  releasor,  that  he  may  have  the  advantage  of  the 
releasee's  testimony  ;  and  the  understanding  in  all  such  cases 
is  that  he  prefers  relinquishing  forever  any  actual  or  contingent 
claim  which  he  may  have  upon  the  releasee,  rather  than  forego 
the  advantage  he  expects  to  derive  from  his  testimony. 

We  also  think  there  is  another  distinction  between  the  case 


SEC.  u/i.]  FLIGHT  T'.    REED.  66l 

at  bar  and  the  case  cited,  founded  in  obvious  and  strong  con- 
siderations of  policy.  A  release  given  to  qualify  a  witness  is 
usually  given  in  open  court,  in  presence  of  the  jury.  It  must 
be  full  and  complete,  to  the  satisfaction  of  the  Court  ;  it  is  ex- 
hibited and  represented  as  an  absolute  and  complete  discharge 
of  all  interest  in  the  event  of  the  suit.  If  it  should  come  to  be 
considered  that  such  a  release  merely  took  away  a  legal  remedy, 
that  it  left  the  moral  obligation  subsisting  in  its  full  force,  and 
that  the  legal  obligation  would  be  revived  by  expressions  on 
which  it  might  be  left  to  a  jury  to  find  a  promise,  it  would  in- 
troduce an  element  of  doubt  as  to  the  force  and  effect  of  such  a 
release.  It  might  well  be  argued  that  it  was  merely  formal, 
and  left  the  witness  still  substantially  interested,  and  would 
have  a  secret  injurious  effect  upon  the  credit  due  to  released 
witnesses. 

Without  therefore  giving  an  opinion   in   reference   to  a  case 
where  a  creditor  has  executed  a  release,  to  enable  an  insolvent 
debtor  to  obtain  his  discharge  under  a  general  assignment,  the 
Court  are  of  opinion  that  where  a  release  has  been  voluntarily  •    y 
executed  and  delivered  by  a  creditor  to  his  debtor,  for  the  ex- 
press purpose  of  discharging  all  interest,  and  qualifying  him  as 
a  witness  for  his  own  benefit,  there  remains  no  more  obligation  ; 
to  pay  the  debt,  which  is  sufficient  to  afford  a  consideration  for ' 
a  new  promise  upon  which  an  action  will  lie. 

Nonsuit  to  stand. 


FLIGHT  V.  REED. 

In  the  Exchequer,  January  21,  1863. 

\Reported  in  i  Hurlstone  (S^»  CoKman  702.] 

Declaration  on  six  bills  of  exchange,  drawn  in  the  years 
1855  and  1856,  by  the  plaintiff  upon  and  accepted  by  the  de- 
fendant. 

Plea.  That  before  the  making  of  the  said  bills  of  exchange 
in  the  declaration  mentioned,  or  any  or  either  of  them,  to  wit, 
on  October  31st,  1845,  a.d.,  it  was  corruptly  and  against  the 
form  of  the  statute  in  that  behalf  made  and  provided,  agreed 
between  the  plaintiff  and  defendant,  and  one  Robin- 

son, that  the  plaintiff  should  lend  and  advance  to  the  defendant 
and  the   said  Robinson   a  certain  sum  of   money,  to 

wit,  ;^i5oo,  and  that  the  plaintiff  should  forbear  and  give  day 
of  payment  to  the  defendant  and   the  said  Robinson^ 


662  FLIGHT   V.    REED.  [cHAP.  i. 

until  a  day  then  to  come,  to  wit,  until  the  bills  of  exchange 
next  hereinafter  mentioned  should  become  due  and  payable,  and 
that  for  such  forbearance  the  defendant  and  the  said 
Robinson  should  pay  to  the  plaintiff  more  than  lawful  interest 
at  the  rate  of  ^5  per  centum  per  annum,  upon  the  said  sums  of 
money  so  lent  and  forborne  by  the  plaintiff  to  the  defendant — 
that  is  to  say,  ^xoo.  And  that  for  securing  the  repayment  of 
the  said  sum  of  jQi^Soo  and  interest,  the  defendant  and  the  said 
Robinson  should  accept  and  deliver  to  the  plaintiff 
certain  bills  of  exchange,  drawn  by  the  plaintiff  upon  them, 
whereby  they  should  engage  to  pay  to  the  plaintiff  or  his  order 
^1600,  ten  weeks  after  the  date  thereof  and  of  the  said  loan. 
And  the  defendant  further  says,  that  in  pursuance  of  the  said 
unlawful  agreement  the  plaintiff  accordingly,  to  wit,  on  the  day 
and  year  aforesaid,  made  the  said  loan  and  advance  to  the  de- 
fendant, and  the  said  Robinson,  and  they  then  accord- 
ingly accepted  bills  of  exchange,  drawn  by  the  plaintiff  on  them 
for  the  sum  of  ^1600,  payable  as  aforesaid.  And  that  save  as 
aforesaid  there  never  was  any  consideration  for  the  acceptance 
1  by  the  defendant  of  the  said  last-mentioned  bills  of  exchange, 
or  any  or  either  of  them.  And  the  defendant  further  says  that 
the  said  bills  were  dishonored  at  maturity,  and  that  the  bills  of 
exchange  in  the  declaration  mentioned  were  accepted  and  given, 
after  the  passing  of  the  statute  17  &  18  Vict.  ch.  90,  by  way  of 
renewal  of  the  said  other  bills  of  exchange,  to  secure  the  pay- 
ment to  the  plaintiff  of  the  money  secured  by  the  said  other  bills 
of  exchange  so  given  to  the  plaintiff  as  aforesaid,  including  the 
said  sum  of  ;^ioo  heretofore  mentioned,  and  in  the  said  other 
bills  included  as  interest  as  aforesaid  ;  and  that  save  as  afore- 
said there  never  was  any  value  or  consideration  for  the  accept- 
ance by  the  defendant  of  the  bills  of  exchange  in  the  declaration 
mentioned  or  any  or  either  of  them. 
Demurrer  and  joinder  therein. 

Lush  {Philbrick  with  him)  in  support  of  the  demurrer. 
MacNamara  in  support  of  the  plea. 

The  learned  judges  having  differed  in  opinion,  in  the  ensuing 
term  (May  8th)  the  following  judgments  were  delivered. 

Martin,  B.  This  is  a  demurrer  to  a  plea.  The  action  is 
upon  several  bills  of  exchange.  The  plea  is  that  before  the 
making  of  the  bills  declared  on  it  was  corruptly  and  against 
the  form  of  the  statutes  agreed  between  the  plaintiff  and  the 
defendant  and  one  Robinson  that  the  plaintiff  should  lend  them 
^1500,  and  that  he  should  forbear  and  give  day  of  payment  to 
them  until  a  future  day,  and  that  for  such  forbearance  they 
should   pay  to  him   more  than   lawful   interest  at  the  rate  of 


SEC    u/l.]  FLIGHT   V.    REED.  663 

;^5  per  cent  per  annum  upon  the  sum  so  lent  and  forborne,  and 
that  for  securing  the  repayment  of  the  said  sum  of  ^1500  and 
interest,  the  defendant  and  Robinson  should  accept  and  deliver 
to  the  plaintiff  certain  bills  of  exchange  drawn  by  the  plaintiff 
upon  them,  whereby  they  engaged  to  pay  to  the  plaintiff,  or 
his  order,  ^1600  ten  weeks  after  the  date  thereof  and  of  the 
loan.  That  in  pursuance  of  the  said  unlawful  agreement  the 
plaintiff  made  the  loan,  and  the  defendant  and  Robinson  ac- 
cepted the  bills,  and  that  save  as  above  there  was  no  considera- 
tion for  these  acceptances.  That  these  bills  of  exchange  were, 
dishonored  at  maturity,  and  that  the  bills  of  exchange  declared 
on  were  given,  after  the  passing  of  the  statute  17  &  18  Vict, 
ch.  90,  by  way  of  renewal  of  the  said  first-mentioned  bills,  and 
accepted  to  secure  the  payment  to  the  plaintiff  of  the  money 
secured  by  the  first-named  bills  so  given  to  the  plaintiff  and  the 
said  usurious  interest,  and  that  save  as  aforesaid  there  was  not 
any  value  or  consideration  for  the  acceptance  by  the  defendant 
of  the  bills  sued  on. 

The  plea  disclosed  this  state  of  things — viz.,  that  when  the 
loan  was  made  and  the  first  bills  of  exchange  given  the  statute 
12  Anne,  stat.  2,  ch.  16  was  in  operation,  but  that  when  the 
bills  of  exchange  declared  on  were  given  the  statute  17  &  18 
Vict.  ch.  90  had  passed.  The  latter  statute  repeals  the  statute 
of  Anne,  but  the  second  section  provides  that  nothing  in  it  shall 
prejudice  or  affect  the  rights  or  remedies,  or  diminish  or  alter 
the  liabilities  of  any  person  in  respect  of  any  act  done  previous 
to  its  passing.  The  original  loan  and  bills  of  exchange  were 
therefore  left  uaaffected  by  it.  The  statute  of  Anne  enacts  that  i 
no  person  upon  any  contract  shall  take  for  a  loan  of  money  ( 
above  ^5  per  cent  for  a  year,  and  that  all  contracts  for  pay-  , 
ment  of  any  principal  so  lent  shall  be  utterly  void,  and  that  any 
person  who  shall  take  above  ^5  per  cent  for  a  year  shall  forfeit 
and  lose  for  such  offence  treble  the  value  of  the  money  lent. 
The  loan  was  therefore  an  illegal  transaction,  and  the  original 
contract  to  repay  it,  and  the  bills  of  exchange  given  for  it  were 
utterly  void  ;  and  the  plea  states  that  save  these  there  was  no 
other  consideration  for  the  bills  declared  on. 

It  is  quite  clear  that  a  bill  of  exchange  is  a  simple  contract  ; 
it  and  promissory  notes  differ  from  other  simple  contracts  in 
this,  that^rimd  fade  they  import  consideration  ;  but  when  it  is 
proved  that  there  was  no  consideration,  or  an  illegal  one,  the 
bill  of  exchange  or  note  is  of  no  avail.  It  does  seem  superfluous 
to  cite  any  authority  for  the  above  positions,  but  in  my  Brother 
Byles's  book  upon  Bills,  page  iii  (8th  edition),  it  is  stated  that 
the  defendant  is  at  liberty  in  all  cases  (when  the  issue  raised 


564  FLIGHT   V.    REED.  [CHAP.  I. 

admits  of  it)  to  show  affirmatively,  by  his  own  witnesses,  ab- 
sence or  failure  of  consideration  ;  and  again,  page  124,  the  con- 
sideration  given  for  a  bill  must  not  be  illegal  ;  and  at  page  132, 
if  part  of  the  consideration  of  a  bill  be  illegal,  the  instrument  is 
vitiated  altogether  ;  and  at  page  288  usury  is  said  to  be  an 
indictable  misdemeanor  at  common  law,  for  which  Comyns's 
Digest,  title  Usury,  is  cited.  Now  the  consideration  for  the 
bills  declared  on  was  the  usurious  loan  and  the  bills  of  exchange 
given  to  secure  it.  But  the  statute  of  Anne  has  declared  these 
to  be  utterly  void  ;  and,  speaking  for  myself,  I  cannot  under- 
stand how  an  utterly  void  and  illegal  contract  or  transaction 
can  be  a  legal  consideration  for  a  new  contract.  But  the  case 
does  not  rest  here,  for  at  page  294  the  same  learned  author 
states  that  if  an  usurious  bill  be  in  the  hands  of  a  holder  who 
was  a  party  to  the  usurious  transaction,  and  he  gives  it  up  for 
a  substituted  security,  the  original  usurious  taint  infects  the 
subsequent  security,  and  either  is  void.  Now  applying  the 
above  statement  of  the  law,  the  consequence  seems  to  me  in- 
evitable that  the  bills  of  exchange  sued  on  are  not  of  avail  in 
the  hands  of  the  plaintiff,  who  was  the  usurious  lender,  and 
that  the  plea  is  good. 

But  a  case  of  Barnes  v.  Hedley,  2  Taunt.  184  was  cited.  Ac- 
cording to  the  statement  in  the  report,  a  person  called  Webb 
had  agreed  to  lend  money  at  j[^^  per  cent  interest,  but  with  a 
proviso  that  he  should  also  receive  a  commission  of  ;£^  per  cent 
upon  sugars  to  be  bought  of  him  or  provided  by  him,  and  cer- 
tain deeds  and  securities  were  given  to  him  to  secure  the  bal- 
ance due.  It  was  admitted  at  the  trial  that  this  was  an  usurious 
contract,  but  it  was  proved  that  in  consequence  of  its  being  inti- 
mated to  Webb  that  it  was  so,  it  was  agreed  that  Webb  should 
make  out  fresh  accounts,  leave  out  all  the  usurious  charges, 
charge  only  for  the  principal  money  and  legal  interest,  and  that 
the  original  deeds  and  securities  in  the  possession  of  Webb 
should  be  given  up  and  cancelled.  Webb  accordingly  made 
out  such  fresh  accounts,  in  which  he  omitted  the  usurious 
charges,  and  the  balance  sought  to  be  recovered  in  the  action 
was  composed  of  the  principal  moneys  actually  advanced,  with 
lawful  interest  fairly  and  legally  calculated,  the  whole  commis- 
sion and  every  objectionable  charge  being  omitted.  The  ac- 
count was  delivered  to  the  debtor,  who  acknowledged  the  bal- 
ance, and  promised  to  pay  it,  and  thereupon  the  deeds  and 
securities  originally  given  to  Webb  were  produced,  and  can- 
celled and  burnt  in  the  presence  of  the  debtor.  The  Court  of 
■  Common  Pleas  held  that  the  balance  so  arrived  at  and  promised 
to  be  paid  was  recoverable  at  law,  and  so  certified  to  the  Lord 


SEC.  u/i.]  FI.KWIT   7'.    REED.  665 

Chancellor,  the  case  being  an  issue  from  Chancery.  I  cannot 
myself  see  the  application  of  this  case  to  the  present.  If  it  had 
appeared  upon  the  record  tliat  the  plaintiff  and  defendant  had 
accounted  together  and  struck  off  the  usurious  interest,  and  the 
latter  had  given  the  bills  declared  on  for  the  amount  of  the 
original  loan  and  legal  interest,  it  would  have  been  an  authority 
in  favor  of  the  plaintiff,  but  nothing  of  the  kind  appears  upon 
the  plea  ;  indeed,  the  contrarj'  appears,  for  the  bills  declared 
on  are  stated  to  have  been  given  to  secure  the  payment  to  the 
plaintiff  of  the  money  secured  by  the  bills  of  exchange  given  to 
him  in  furtherance  of  the  illegal  and  corrupt  contract,  and  that 
there  was  no  other  consideration  for  them.  The  case  has  been 
put  thus,  that  when  the  bills  declared  on  were  given  there  was 
no  usury  law,  and  it  was  competent  for  the  defendant  to  pay  or 
contract  to  pay  interest  to  any  extent,  and  that  the  bills  were 
lawful,  assuming  them  to  have  been  given  for  a  loan  then  made. 
This  is  quite  true,  but  it  has  no  application  to  the  real  and  true 
case  under  consideration.  There  was  no  loan  after  the  repeal- 
ing statute  was  passed.  There  was  no  correction  of  the  orig- 
inal unlawful  transaction.  There  is  nothing  whatever  shown 
on  the  record  except  bills  given  upon  and  in  respect  of  a  trans- 
action which  the  law  had  declared  to  be  utterly  void,  and  which 
at  one  time  seems  to  have  been   considered  an  indictable  crime. 

Another  case  was  cited,  Wright  v.  Wheeler,  which  will  be 
found  in  a  note  to  Barnes  v.  Hei^lley,  i  Camp.  165.  This  was 
an  action  upon  a  bond.  There  had  been  an  usurious  contract, 
but  afterward  the  parties  agreed  that  some  usurious  interest 
which  had  been  paid  should  be  deducted  from  the  principal, 
and  a  bond  given  for  the  balance  of  the  principal  with  lawful 
interest.  Lawrence,  J.,  was  of  opinion  at  iiisi  prius  that  the 
bond  was  lawful.  The  parties,  he  said,  had  rectified  their  error, 
and  substituted  for  an  illegal  contract  one  which  was  fair  and 
legal.  The  case  has  no  bearing  upon  the  present.  There  is 
here  no  substitution  of  a  legal  contract  for  an  illegal  one  ;  it  is 
a  mere  continuance  of  the  old  unlawful  contract.  Cuthbert  v. 
Haley,  8  T.  R.  390,  is  to  the  same  effect. 

A  case  of  Wicks  v.  Gogerley,  R.  &  Moo.  123  (E.  C.  L.  R. 
Vol.  XXI.)  was  also  cited  by  the  leading  counsel  for  the  plain- 
tiff, but  according  to  the  statement  of  the  law  laid  down  there 
by  Best,  C.J.,  the  plaintiff  is  not  entitled  to  recover.  He  says 
the  principle  is  that  where  parties  to  an  usurious  agreement 
"  state  an  account  and  agree  upon  the  sum  which  would  be  due 
for  principal  and  legal  interest,  after  deducting  all  that  has 
been  paid  beyond  legal  interest,  and  a  fresh  promise  is  made  to 
pay  that  sum,  such  promise  is  free  from  the  original  usury,  and 


^^  FLIGHT   V.    REED.  [CHAP.  I. 

is  perfectly  valid  in  law.  But  in  order  to  bring  this  case  within 
the  principle,  all  beyond  legal  interest  must  be  repaid  or  de- 
ducted." In  the  report  of  Barnes  v.  Hedley  in  ist  Campbell, 
which  I  have  before  referred  to,  there  is  a  judgment  of  Cham- 
bre,  J.,  which  seems  to  me  to  be  well  worthy  of  consideration 
bv  any  one  who  desires  to  ascertain  what  is  the  true  law  upon 
this  subject.  There  is  also  a  case  which  was  not  mentioned  in 
the  argument,  Preston  v.  Jackes,  2  Stark.  237  (E.  C.  L.  R., 
Vol.  III.),  which  was  tried  before  Holroyd,  J.,  who  held  that  a 
party  could  not  recover  on  a  note  which  operated  as  a  security 
for  any  usurious  interest.  This  case  seems  to  me  in  point  foi 
the  defendant,  and  any  opinion  of  Holroyd,  J.,  wherever  given, 
is  entitled  to  the  greatest  weight  and  is  of  the  highest  authority. 

The  result  is  that  in  my  opinion  an  usurious  loan  within  the 
statute  of  Anne,  and  usurious  interest  contracted  to  be  paid  for 
it,  is  not  a  good  consideration  for  a  bill  of  exchange,  and  that 
a  bill  given  upon  such  consideration  is  not  of  avail  ;  and  this 
opinion  does  not  contravene  the  case  of  Barnes  v.  Hedley,  re- 
ported in  2  Taunton,  or  any  other  case  or  authority  which  I 
have  met  with  or  has  been  referred  to  ;  but,  on  the  contrary, 
in  my  opinion,  is  in  conformity  with  them  all. 

Pollock,  C.B.  The  judgment  which  I  am  about  to  deliver 
is  that  of  my  Brother  Wilde  and  myself. 

My  Brother  Martin  having  stated  the  pleadings,  it  is  not 
necessary  to  repeat  them. 

The  real  question  raised  by  this  demurrer  is  whether  there  is 
a  good  consideration  for  the  bills  declared  upon. 

The  original  bills  were  given  for  an  advance  of  money  with 
usurious  interest  at  a  time  when  such  a  transaction  was  forbid- 
den by  law,  and  were  therefore  void  and  of  no  legal  obligation. 

The  bills  sued  on  were  given  since  the  repeal  of  the  usury 
law,  and  at  a  time  when  the  giving  or  confirming  an  obligation 
to  pay  any  amount  of  interest,  however  high,  was  perfectly  legal 
and  binding. 

But  the  altered  law  did  not  render  valid  the  original  bills  ; 
they  were  void  when  given,  and  remained  void  and  of  no  legal 
obligation  up  to  the  time  when  they  were  renewed  by  the  bills 
in  question, 
'  The  original  bills,  therefore,  could  not  form  a  legal  consider- 
ation for  those  now  sued  upon.  Indeed,  there  was,  when  the 
fresh  bills  were  given,  no  legal  obligation  whatever  upon  the 
defendant  to  repay  a  single  farthing  of  the  large  advance  he 
had  received.  But  for  that  advance  he  has  voluntarily  given 
these  bills,  and  whether  the  law  will  permit  and  enforce  such  a 
contract  is  the  question. 


SEC.  u/i.]  FLIGHT   T'.    REED.  66/ 

During  the  existence  of  the  usury  law  the  courts  of  law  were 
bound  to  enforce  them,  to  deal  with  interest  above  the  statute 
rate  as  an  unlawful  and  forbidden  thing,  and  to  discover  and 
defeat  all  attempts,  direct  or  indirect,  to  give  or  enforce  it. 

But  the  legislature  has  since  repealed  the  laws  against  usury, 
and  upon  a  fuller  and  wider  view  of  public  policy  declared  the 
rate  of  interest  on  loans  to  be  unlimited  and  free. 

The  courts  of  law  are  bound  with  equal  fidelity  to  give  effect 
to  this  new  and  opposite  view  of  the  legislature.  Interest  above  ' 
^^  per  cent  should  no  longer  be  regarded  as  of  necessity  illegal 
or  unrighteous,  and  no  facility  should  be  given  to  escape  from 
an  obligation  to  repay  a  real  advance  of  monej'',  or  evade  a  con- 
tract willingly  made,  though  interest  should  have  been  con- 
tracted for  which  used  to  be  at  a  rate  called  usurious  rate. 

We  make  these  remarks,  because  in  argument  the  expression 
"  taint  of  an  usurious  transaction"  was  often  repeated,  and  the 
Court  was  pressed  in  language,  commonly  and  properly  used 
while  the  usury  laws  were  in  force,  to  give  no  countenance  to  a 
contract  of  which  the  origin  was  an  advance  of  money  with 
more  than  ^^  per  cent  interest. 

Such  remarks  have  no  application  to  or  bearing  on  a  contract 
made  like  that  in  question  since  the  usury  laws  have  been  re- 
pealed. 

We  therefore  pass  them  by  to  consider  the  true  question  in, 
the  case — viz.,  whether  an  advance  of  money  under  such  cir-j 
cumstances  as  to  create  no  legal  obligation  at  the  time  to  repay! 
it  can  constitute  a  good  consideration  for  an  express  promise  to' 
do  so. 

Such  a  consideration  has  been  sometimes  called  a  moral  con- 
sideration. And  we  think  unfortunately  so,  for  the  term  used 
as  a  definition  tends  to  include  too  wide  a  range  of  objects. 

And  there  are  many  conjunctures  in  which  a  man  may  feel 
himself  morally  bound  to  pay  money  and  promise  to  do  so, 
which  the  law  would  not  recognize  as  forming  a  good  consider- 
ation. 

But  a  loan  of  money  is  a  very  different  thing.  The  very 
name  of  a  loan  imports  that  it  was  the  understanding  and  in- 
tention of  both  parties  that  the  money  should  be  repaid. 

And  though  at  the  time  of  the  advance  the  law,  for  reasons 
of  public  policy,  forbid  any  liability,  and  incapacitate  the 
parties  from  making  a  binding  contract,  there  is  no  reason  why 
a  binding  contract  should  not  be  made  afterward  if  the  legal 
prohibition  be  removed. 

And  the  consideration  which  would  have  been  sufficient  to 
support  the  promise,  if  the  law  had  not  forbidden  the  promise 


>■ 


668  FLIGHT  V.    REED.  [cHAP.  I. 

to  be  made  originally,  does  not  cease  to  be  sufficient  when  the 
legal  restriction  is  abrogated. 

There  is,  therefore,  reasonable  ground,  as  it  seems  to  us,  for 
this  qualified  proposition — viz.,  that  a  man  by  express  promise 
may  render  himself  liable  to  pay  back  money  which  he  has  re- 
ceived as  a  loan,  though  some  positive  rule  of  law  or  statute 
intervened  at  the  time  to  prevent  the  transaction  from  con- 
stituting a  legal  debt. 

There  is  likewise  authority  for  it.  The  general  doctrine 
within  which  such  a  proposition  falls  is,  we  believe,  first  found 
promulgated  in  Lord  Mansfield's  time.  It  is  the  subject  of  a 
long  note  to  the  report  of  the  case  of  VVennall  v.  Adney, 
3  Bos.  &  P.  249.  It  has  been  the  subject  of  much  discussion  in 
many  subsequent  cases.  It  was  stated  most  widely,  and  per- 
haps too  widely,  in  the  case  of  Lee  v.  Muggeridge,  5  Taunt.  45 
(E.  C.  L.  R.,  Vol.  I.).  And  it  has  consequently  been  much 
qualified  and  sometimes  disparaged  since.  See  Eastwood  v. 
Kenyon,  11  A.  &  E.  447  (E.  C.  L.  R.,  Vol.  XXXIX.)  ;  Beau- 
mont V.  Reeve,  8  Q.  B.  487  (E.  C.  L.  R.,  Vol.  LV.)  ;  Cocking  v. 
Ward,  I  C.  B.  870  (E.  C.  L.  R.,  Vol.  L.). 

But  it  was  repeated  and  stated  to  be  undoubted  law  by 
Parke,  B.,  in  Earle  v.  Oliver,  2  Exch.  71,  89,  who  says  :  "  The 
strict  rule  of  the  common  law  was,  no  doubt,  departed  from  by 
Lord  Mansfield  in  Hawkes  v.  Saunders,  Cowp.  290  and  Atkins  v. 
Hill,  Cowp.  284. 

,  "  The  principle  of  the  rule  laid  down  by  Lord  Mansfield  is, 
that  where  the  consideration  was  originally  beneficial  to  the 
party  promising,  yet  if  he  be  protected  from  liability  by  some 
provision  of  the  statute  or  common  law  meant  for  his  advan- 
tage, he  may  renounce  the  benefit  of  that  law  ;  and  if  he  prom- 
ises to  pay  the  debt,  which  is  only  what  an  honest  man  ought 
to  do,  he  is  then  bound  by  law  to  perform  it. 

"  There  is  a  very  able  note  to  the  case  of  Wennall  v.  Adney, 
3  Bos.  &  P.  247  explaining  this  at  length.  The  instances  given 
to  illustrate  the  principle  are,  among  others,  the  case  of  a  debt 
barred  by  certificate  and  by  the  Statute  of  Limitations,  and  the 
rule  in  these  instances  has  been  so  constantly  followed  that 
there  can  be  no  doubt  that  it  is  to  be  considered  as  the  estab- 
lished law." 

The  case  of  Fitzroy  v.  Gwillim,  i  T.  R.  153  is  an  example  of 
the  view  that  has  been  taken  of  the  subject  even  in  a  court  of 
law,  but  although  that  case  is  certainly  not  law,  it  is  quite  true 
that  courts  of  equity  have  relieved  (where  their  interference  was 
wanting)  only  on  the  terms  of  the  principal  and  legal  interest 
being  paid. 


SEC.  u/l.]  GOULDING   t'.    DAVIDSON.  669 

We  think  the  view  we  have  taken  receives  considerable  sup- 
port from  the  case  of  Barnes  v.  Hedley,  2  Taunt.  1S4,  which, 
if  not  a  direct  authority  for  the  plaintiff,  is  somewhat  similar  in 
its  circumstances  ;  the  usurious  interest  was  in  that  case  struck 
out,  but  now,  since  the  repeal  of  the  statute  of  Anne,  there  is 
nothing  unlawful  in  usurious  interest.  Here  the  defendant 
says  :  "  I  could  not  then  make  the  promise  ;  I  can  now,  and  I 
am  willing  to  do  so." 

The  plaintiff  is,  therefore,  in  our  opinion,  entitled  to  the 
judgment  of  the  Court. 

Judgment  for  the  plaintiff. 


GOULDING  V.  DAVIDSON. 

In  the  Court  of  Appeals  of  New  York,  June  Term,   1863. 

\^Reported  171  26  New  York  Reports  604.  j 

Appeal  from  the  Supreme  Court.  Action  brought  in  the  year 
1857.  The  complaint  showed  that  the  firm  of  McCreery  & 
Gouldingsold  and  delivered  goods  to  the  defendant  at  different 
times  and  at  her  request,  for  which  she  gave  them  three  prom- 
issory notes,  described  in  the  complaint,  for  the  several  sums 
of  $200,  $374.98,  and  $176.78.  That  such  firm,  at  another  time, 
sold  and  delivered  goods  to  her  and  at  her  request  of  the  value 
of  $10.50.  The  complaint  contained  the  following  allegations  : 
"  And  the  said  plaintiff  further  shows  on  information  and  belief, 
that  the  aforesaid  promissory  notes,  and  each  and  every  of  them 
were  made  and  delivered  to  the  said  McCreery  &  Goulding  for 
merchandise  sold  and  delivered  by  the  said  McCreery  &  Gould- 
ing, to  her  at  her  request,  and  solely  on  her  credit  and  responsi- 
bility, she  being  then  a  trader  doing  business  in  her  own  name, 
and  for  her  own  personal  benefit  and  advantage,  and  holding 
herself  out  to  be  an  unmarried  woman  ;  but  she  nevertheless, 
as  the  plaintiff  has  been  informed  and  believes,  alleged  that  she 
was,  at  the  time  such  goods  were  sold  and  delivered  to  her,  and 
all  the  said  contracts  in  this  complaint  mentioned  entered  into, 
a  married  woman,  and  was  then  intermarried  with  one  David- 
son, of  which  the  said  McCreery  &  Goulding  were  ignorant. 
But  the  plaintiff  says  that  after  the  sale  and  delivery  of  the  said 
goods,  and  after  the  making  of  the  said  notes  and  all  the  said 
contracts  named,  and  on  or  about  September  ist,  1854,  her  said 
alleged  husband  died,  and  she  has  not  since  intermarried  ;  that 
after  the  death  of  her  said  alleged  husband,  and  she  being  then 


670  GOULDING   V.    DAVIDSON.  [cHAP.  I. 

sole,  to  wit,  in  or  about  the  month  of  September,  1855,  she,  in 
consideration  of  the  premises  and  of  her  duty  in  that  behalf, 
and  of  the  moral  obligation  resting  upon  her  to  pay  for  the  said 
goods  and  merchandise,  and  to  pay  the  said  promissory  notes 
and  expenses  aforesaid,  undertook  and  promised  to  and  with 
the  said  McCreery  &  Goulding  to  pay  the  same  and  every  part 
thereof." 

The  complaint  contained  allegations  showing  that  the  plain- 
tiff had  become  the  sole  owner  of  the  several  alleged  causes  of 
action  therein  set  out,  and  concluded  with  a  demand  of  judg- 
ment. 

The  defendant  demurred,  assigning  as  the  only  ground  that 
the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action. 

Judgment  was  given  upon  the  demurrer  in  favor  of  the  de- 
fendant at  the  special  term,  which  judgment  was  affirmed  at  a 
general  term  of  the  Supreme  Court  in  the  first  district. 

The  plaintiff  appealed  therefrom  to  this  Court. 

Andrew  Boardman  for  the  appellant. 

John  H.  Reynolds  for  the  respondent. 

Balcom,  J.  As  this  action  was  commenced  in  1857,  it  must 
be  determined  by  the  rules  of  the  common  law,  irrespective  of 
the  alterations  made  by  our  recent  statutes  in  the  laws  affecting 
husband  and  wife. 

It  cannot  be  said  that  the  husband  of  the  defendant  was  ever 
liable  ex  contractu  to  pay  for  the  goods.  They  were  not  neces- 
saries, and  there  is  no  allegation  in  the  complaint  that  he  knew 
of  the  purchase  of  the  goods  by  his  wife,  or  that  they  ever  came 
to  his  possession. 

There  is  another  view  of  the  case  which  shows  the  promise  of 
the  defendant  to  pay  for  the  goods  and  pay  the  notes  she  gave 
therefor,  was  founded  upon  a  sufficient  consideration.' 

I  am  aware  the  general  rule  is  that  a  moral  obligation  is  not 
alone  a  sufficient  legal  consideration  to  support  a  promise, 
(i  Story  on  Cont.,  4th  ed.,  §§  465-469  ;  Chitty  on  Cont.,  9th 
Am.  ed.,  pp.  48-49  ;  24  Wend.  97  ;  i  Hill,  532  ;  5  Hill,  306.) 
And  the  Superior  Court  of  New  York  City  went  so  far  in  Wat- 
kins  V.  Halstead,  2  Sand.  S.  C.  311,  which  case  was  followed  by 
the  Supreme  Court  in  this,  as  to  adopt  the  language  of  a  note 
to  Wennall  v.  Adney,  3  Bos.  &  Pul.  252,  where  it  was  said  that 
"  an  express  promise  can  only  revive  a  precedent  good  consid- 
eration, which  might  have  been  enforced  at  law  through  the 
medium  of  an  implied  promise,  had  it  not  been  suspended  by 
some  positive  rule  of  law  ;  but  can  give  no  original  right  of 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question.— Ed. 


SEC.  u/i.]  GOULDIXG   i:    DAVIDSON'.  67 1 

action,  if  the  obligation  on  which  it  is  founded  never  could  have 
been  enforced  at  law,  though  not  barred  by  any  legal  ma.xim 
or  statute  provision."  But  this  rule  is  too  broad,  or  at  least 
there  are  exceptions  to  it.  For  there  are  cases  where  a  moral 
obligation  that  is  founded  upon  an  antecedent  valuable  consid- 
eration is  sufficient  to  sustain  a  promise,  though  the  obligation 
on  which  it  is  founded  never  could  have  been  enforced  at  law. 
In  other  words,  a  moral  obligation  is  sometimes  a  sufficient  con- 
sideration for  an  express  promise,  if  at  some  time  or  other  a 
good  or  valuable  consideration  has  existed,  although  there  never 
was  a  time  prior  to  such  express  promise  when  any  portion  of 
the  precedent  consideration  could  have  been  enforced  at  law  or 
in  equity  through  the  medium  of  any  promise.  To  illustrate. 
If  money  be  loaned  upon  usur}',  and  usurious  security  taken 
therefor,  such  security  is  absolutely  void,  and  no  action  can  be 
maintained  upon  it  ;  nor  is  it  evidence  of  an  indebtedness  upon 
the  strength  of  which  the  law  will  imply  a  promise  on  the  part 
of  the  borrower  to  repay  the  amount  actually  received  by  him. 
The  express  contract  being  absolutely  void,  no  implied  obliga- 
tion can  spring  from  it.  The  lender  cannot  waive  or  abandon 
the  usurious  agreement  so  far  as  it  is  illegal  and  enforce  it  for 
the  residue.  The  contract  is  one  ;  no  matter  what  the  nature 
or  numbers  of  the  securities  may  be,  all  are  void.  The  contract 
cannot  be  broken  up  and  resolved  into  its  original  parts  or  ele- 
ments, so  as  to  get  rid  of  the  illegal  taint  without  the  consent 
of  both  parties.  But  if  it  is  mutually  abandoned,  and  the 
securities  are  cancelled  or  destroyed,  so  that  they  can  never  be 
made  the  foundation  of  an  action,  and  the  borrower  subse- 
quently promise  to  pay  the  amount  actually  received  by  him, 
such  promise  is  legal  and  binding.  It  is  founded  upon  an 
equitable  and  moral  obligation,  which  is  sufficient  to  support 
an  express  promise.  The  money  actually  lent  when  legally 
separated  from  the  usurious  premium,  is  a  debt  in  equity  and 
conscience,  and  ought  to  be  repaid.  (Per  Sutherland,  J.,  in 
Hammond  z>.  Hopping,  13  Wend.  511-512  ;  Miller  v.  Hull, 
4  Denio,  104  ;  Chitty  on  Cont.,  9th  Am.  ed.,  712-713  ;  i  Story 
on  Cont.,  4th  ed.,  §  603  ;  2  Pars,  on  Cont.,  3d  ed.,  397  ;  Par- 
son's Mercantile  Law,  257  ;  Barnes  v.  Hedley,  2  Taunt.  184.) 

In  Lee  v.  Muggeridge,  5  Taunt.  35,  a  feme  covert  having  an 
estate  settled  to  her  separate  use,  gave  a  bond  for  repayment, 
by  her  executors,  of  money  advanced  at  her  request,  on  security 
of  that  bond  to  her  son-in-law  ;  and  after  her  husband's  de- 
cease she  wrote,  promising  that  her  executors  should  settle  the 
bond,  and  it  was  held  that  assumpsit  would  lie  against  the  execu- 
tors on  such  promise  of  the  testatrix.     That  case  was  not  over- 


()']2  GOULDIXG   V.    DAVIDSON.  [CHAP.  I. 

ruled  by  the  decision  in  Meyer  v.  Haworth,  8  Adol.  &  Ellis, 
467,  though  it  must  be  conceded  it  was  very  much  weakened  as 
an  authority  in  England  by  Eastwood  v.  Kenyon,  11  Adol.  & 
Ellis,  438.  And  Littlefield,  Executrix,  etc.,  v.  Shee,  2  Barn.  & 
Adol.  811,  was  put  mainly  upon  the  ground  that  the  price  of 
the  goods  originally  constituted  a  debt  from  the  husband, 
though  Lord  Tenterden  in  deciding  it  said  he  must  also  observe 
"  that  the  doctrine  that  a  moral  obligation  is  a  sufficient  con- 
sideration for  a  subsequent  promise  is  one  which  should  be  re- 
ceived with  some  limitation."  Lee  v.  Muggeridge  has  never 
been  overruled  in  this  State.  Smith  v.  Wane,  13  Johns.  257, 
does  not  do  it,  for  that  was  a  case  to  recover  back  money  the 
plaintiff  had  paid  the  defendant  for  land,  the  former  claiming 
there  was  a  deficiency  in  the  number  of  acres,  and  Spencer,  J., 
in  delivering  the  opinion  of  the  Court,  said  :  "  It  cannot  be 
pretended  that  the  defendant  was  under  any  moral  obligation 
to  pay  for  the  deficiency  in  quantity  of  land  sold  and  conveyed 
to  the  plaintiff."  All  that  was  decided  in  Ehle  v.  Judson, 
24  Wend.  97,  was  that  a  mere  moral  or  conscientious  obligation, 
unconnected  with  a  prior  legal  or  equitable  claim,  is  not  a  suffi- 
cient consideration  to  support  a  promise,  and  Bronson,  J.,  who 
gave  the  opinion  of  the  Court,  said  :  "  The  moral  obligation  to 
pay  a  debt  barred  by  the  Statute  of  Limitations,  or  an  insol 
vent's  discharge,  or  to  pay  a  debt  contracted  during  infancy  or 
coverture  and  the  like,  will  be  a  good  consideration  for  an  ex- 
press promise."  In  Wilson  v.  Burr,  25  Wend.  386,  it  was  held 
the  plaintiff  would  recover  his  claim  of  $200  counsel  fees,  and 
the  Court  said  :  "  It  is  true  at  the  time  of  the  retainer  the  de- 
fendant was  3i  feme  covert,  but  she  was  soon  after  divorced,  and 
it  is  to  be  presumed  subsequently  recognized  the  services 
rendered." 

There  are  some,  perhaps  many,  broad  assertions  in  our  re- 
ports going  to  show  that  the  promise  of  the  defendant  in  this 
case  is  not  obligatory,  and  the  reasoning  tends  that  way  in  the 
following  cases  :  Geer  and  Wife  v.  Archer,  2  Barb.  420  ;  Nash  v. 
Russell,  5  Barb.  556  ;  Ingraham  v.  Gilbert,  20  Barb.  151.  But 
there  are  equally  broad  expressions  in  our  reports  the  other 
way,  and  the  reasoning  in  such  cases  as  Doty  v.  Wilson,  14  Johns. 
378,  and  others  I  might  mention,  certainly  tends  to  the  conclu- 
sion that  such  promise  is  binding,  as  in  justice  it  clearly  ought 
to  be. 

The  goods  were  sold  and  delivered  by  the  vendors  with  the 
expectation  on  their  part  that  they  would  receive  pay  for  the 
same,  and  upon  the  defendant's  express  promise  that  she  would 
pay  for  them,  and  under  such  circumstances  tliat  the  vendors 


SEC. 


u/i.]  GOULDING   V.    DAVIDSON.  673 


had  no  claim  therefor  against  her  husband.  The  goods  were 
valuable  and  the  defendant  personally  received  the  benefit  of 
them,  and  the  price  she  agreed  to  pay  therefor  is  a  debt  which, 
"  in  equity  and  conscience,"  she  ought  to  pay.  In  other  words, 
sh?  ought  in  common  honesty  to  pay  for  the  goods.  Her  prom- 
ise so  to  do  was  made  for  value  actually  received  by  her  per- 
sonally, and  it  was  to  discharge  a  moral  obligation  founded 
upon  an  antecedent  valuable  consideration,  created  for  her  own 
personal  benefit,  and  at  her  special  instance  and  request,  and  I 
am  of  the  opinion  the  law  makes  such  promise  obligatory 
upon  her. 

It  seems  to  me  that  the  defendant's  moral  obligation  to  pay 
this  debt  is  so  interwoven  with  equities  as  to  furnish  a  good 
consideration  both  upon  principle  and  authority  for  her  promise 
to  pay  it.  I  will  add  that  the  fact  is  controlling  with  me,  that 
the  defendant  personally  received  a  valuable  consideration  for 
the  money  she  has  promised  to  pay,  and  this  distinguishes  the 
case  from  some  that  seem  to  weigh  against  the  conclusion  that 
the  defendant's  promise  is  valid. 

It  is  unnecessary  to  notice  any  of  the  recent  changes  made  by 
the  Legislature  in  the  law  affecting  husband  and  wife,  as  they 
-are  all  inapplicable  to  the  case,  which  must  be  determined  as 
the  law  was  when  the  alleged  cause  of  action  accrued. 

For  the  foregoing  reasons  I  am  of  the  opinion  the  complaint 
states  facts  sufficient  to  constitute  a  cause  of  action,  and  that 
the  judgment  of  the  Supreme  Court  should  be  reversed,  and 
judgment  given  for  the  plaintiff  on  the  demurrer  with  costs, 
but  with  liberty  to  the  defendant  to  apply  to  the  Supreme 
Court  for  leave  to  answer  on  terms. 

Davies,  J.  A  natural  or  moral  obligation  is  one  which  cannot 
be  enforced  by  action,  but  which  is  binding  on  the  party  who  in- 
curs it  in  conscience  and  according  to  natural  justice.  (2  Bouv. 
200.)  And  the  instance  of  such  an  obligation  is  given,  as  when 
the  action  upon  the  contract  is  barred  by  the  Statute  of  Limita- 
tions, a  natural  or  moral  obligation  still  subsists,  although  the 
civil  obligation  is  extinguished.  A  natural  obligation  is  a  suffi- 
cient consideration  for  a  new  promise.  (5  Binn.  ^^  ;  2  Binn. 
591  ;  Yelv.  41,  a.  n.  i  ;  Cow.  289  ;  2  Bl.  Com.  445  ;  3  B.  &  P, 
249,  n.;  2  East,  506  ;  3  Taunt.  311  ;  5  Taunt.  36  ;  Yelv.  41,  6  n.; 
3  Pick.  207,  and  other  cases  hereinafter  referred  to.) 

The  very  able  note  to  Wennall  v.  Adney,  3  Bos.  &  P.  249, 
contains  a  review  of  all  the  cases  and  a  criticism  upon  the  de- 
cision of  Lord  Mansfield,  and  the  writer  says  that  the  instances 
adduced  by  him  as  illustrative  of  the  rule  of  law,  do  not  carry 
that  rule  beyond  what  the  older  authorities  seem  to  recognize 


674  GOULDING   V.   DxVVIDSON.  [chap.  I. 

as  its  proper  limits,  for  in  each  instance  the  party  bound  by  the 
promise  had  received  a  benefit  previous  to  the  promise.  Indeed, 
it  is  said,  it  seems  that  in  such  instances  alone  will  an  express 
promise  have  any  operation,  and  there  it  only  becomes  neces- 
sary because  though  the  consideration  was  originally  beneficial 
to  the  party  promising,  yet  inasmuch  as  he  was  not  of  a  capacity 
to  bind  himself  when  he  received  the  benefit,  or  is  protected 
from  liability  by  some  statute  provision  or  some  stubborn  rule 
of  law,  the  law  will  not  as  in  ordinary  cases  imply  an  assumpsit 
ao-ainst  him.  Again,  it  is  remarked  that  Lord  Mansfield  appears 
to  have  used  the  term  moral  obligation,  not  as  expressive  of  any 
vague  and  undefined  claim  arising  from  nearness  of  relationship, 
but  of  those  imperative  duties  which  would  be  enforceable  by 
law,  were  it  not  for  some  positive  rule,  which  with  a  view  to 
general  benefit  exempts  the  party  in  that  particular  instance 
from  legal  liability.     Were  it  not  for  the  legal  disability  in  the 

■^  {party  making  the  contract  at  the  time  it  was  so  made,  the  law 
would  imply  a  promise.  But  by  reason  of  such  disability  the 
contract  cannot  be  enforced  unless  there  De  an  express  promise 
to  fulfil  after  the  disability  ceases.     And  the  moral  obligation 

•  thus  to  perform  the  contract  made  under  disability  has  been 
held  to  be  a  good  consideration  to  support  the  express  promise. 
Thus  Bronson,  J.,  said,  in  Ehle  v.  Judson,  24  Wend.  97,  that 
the  moral  obligation  to  pay  a  debt  barred  by  the  Statute  of 
Limitations  or  an  insolvent  discharge,  or  to  pay  a  debt  con- 
tracted during  infancy  or  coverture,  and  the  like,  will  be  a  good 
consideration  for  an  express  promise.  But  a  merely  moral  or 
conscientious  obligation  unconnected  with  any  prior  legal  or 
equitable  claims  is  not  enough.  The  doctrine  thus  laid  down 
and  stated  with  great  precision  and  accuracy  is  fully  sustained 
by  the  authorities.  Buller,  J.,  in  Hawkes  v.  Saunders,  Cowp. 
289,  says  the  point  is  whether  an  obligation  in  justice,  equity, 
and  good  conscience  to  pay  a  sum  of  money  be  or  be  not  a 
sufficient  consideration  in  point  of  law  to  support  a  promise  to 
pay  that  sum.  If  such  a  question,  he  says,  were  stripped  of  all 
authority,  it  would  be  resolved  by  inquiring  whether  law  were 
a  rule  of  justice,  or  whether  it  were  something  that  acts  in 
direct  contradiction  to  justice,  conscience,  and  equity.  He  says 
the  matter  has  been  repeatedly  decided  and  refers  to  numerous 
authorities. 

In  Barnes  v.  Hedley,  2  Taunt,  184,  a  promise  to  pay  a  void 
and  usurious  debt  was  held  binding  on  the  party  making  it,  and 
although  the  promisor  was  not  and  never  had  been  under  any 
legal  obligation  to  pay  the  debt,  yet  it  was  held  that  in  con- 
science and  equity  he  was  bound  to  pay  the  money  actually  bor- 


SEC.  II//.]  GOULDIXG    T'.    DAVIDSON.  675 

rowed,  and  that  such  moral  obligation  formed  a  good  consider- 
ation for  a  promise  to  pay  it. 

Lee  V.  Muggeridge,  5  Taunt.  35,  is  a  case  often  referred  to, 
and  was  regarded  as  a  controlling  authority  until  a  late  period, 
when  its  soundness  has  been  in  some  degree  questioned.  There 
3,  feme  covert,  having  a  separate  estate,  gave  a  bond  for  the  re- 
payment by  her  executors  of  a  certain  sum  of  money  advanced 
at  her  request  on  the  security  of  that  bond  to  her  son-in-law. 
After  her  husband's  decease  she  wrote  promising  that  her  ex- 
ecutors should  settle  the  bond.  It  was  held  that  assumpsit  would 
lie  against  the  executors  upon  the  promise  of  their  testatrix. 
Mansfield,  C.J.,  said  that  it  had  long  been  established  that 
where  a  person  is  bound  morally  and  conscientiously  to  pay  a 
debt,  though  not  legally  bound,  a  subsequent  promise  to  pay 
will  give  a  right  of  action.  And  the  judges  say  that  the  case  is 
not  distinguishable  from  Barnes  v.  Hedley,  supra,  that  in  that 
case  certainl}?^  Hedley  was  never  for  a  moment  legally  bound  to 
pay  a  farthing  of  that  money  for  which  he  was  sued.  Bentley  v. 
Morse,  14  Johns.  468,  is  a  case  similar  in  principle  to  Hedley  v. 
Barnes.*  In  that  case  a  debt  had  been  paid  and  a  receipt  taken 
therefor  as  evidence  of  the  payment.  A  suit  was  brought  to 
recover  the  same  debt,  and  the  receipt  not  being  produced  a 
recovery  was  had  and  the  amount  paid  the  second  time.  There 
was,  therefore,  no  legal  liability  on  the  part  of  the  creditor  to 
refund  the  money,  but  a  moral  and  conscientious  obligation  to 
do  so,  as  he  had  no  claim  morally  to  the  money  paid  the  second 
time.  It  was  held  that  a  promise  to  repay  on  production  of  the 
receipt  was  founded  on  a  good  consideration. 

The  Court  says  :  "  The  debt  having  been  paid,  the  recovery 
in  the  former  action  was  clearly  unjust.  And  though  in  conse- 
quence of  his  neglect  the  defendant  in  error  lost  all  legal  remedy 
to  recover  back  his  money,  yet  there  was  such  a  moral  obliga- 
tion on  the  part  of  the  plaintiff  in  error  to  refund  the  money,  as 
would  be  a  good  consideration  to  support  an  assumpsit  or  ex- 
press promise  to  pay  it.  The  moral  obligation  is  as  strong  as 
any  in  the  cases  in  which  it  has  been  held  sufficient  to  revive  a 
debt  barred  by  statute  or  some  positive  rule  of  law.  It  is  like 
the  promise  of  an  infant  to  pay  a  debt  contracted  during  his 
non-age,  or  of  an  insolvent  or  bankrupt  to  pay  a  debt  from 
which  he  is  discharged  by  his  certificate.  Littlefield  v.  Shee, 
2  Barn.  &  Ad.  811,  was  decided  in  1831,  and  on  the  ground  that 
in  that  case  the  debt  which  the  wife  promised  to  pay  after  she 
became  discovert,  was  the  debt  of  her  husband,  and  that  she 
was  under  no  moral  obligation  to  pay  the  same.  Butcher's 
meat  had  been  furnished  to  the  wife   for  the  space  of  about  si.x 


6^6  GOULDING   V.    DAVIDSON.  [CHAP.  I. 

months,  while  her  husband  was  absent  abroad,  and  after  his 
death  she  promised  to  pay  it.  Lord  Tenterden  held  that  the 
plaintiff  had  failed  to  show  that  he  had  supplied  the  defendant 
with  the  meat,  but  that  it  appeared  it  was  furnished  to  her 
while  her  husband  was  living,  so  that  the  price  constituted  a 
debt  due  from  him.  They  were,  therefore,  of  the  opinion  that 
the  declaration  was  not  supported  by  the  proof,  and  the  nonsuit 
was  right.  Lee  v.  Muggeridge  is  referred  to,  and  it  is  remarked 
that  all  the  circumstances  in  that  case  showed  that  the  money 
was  in  conscience  due  from  the  defendant.  In  Eastwood  v. 
Kenyon,  ii  Adol.  &  Ellis,  438,  the  broad  doctrine  assumed  to 
be  laid  down  in  Lee  v.  Muggeridge  is  criticised  by  Lord  Den- 
man,  and  it  is  said  that  that  doctrine  would  annihilate  the 
necessity  for  any  consideration  at  all,  inasmuch  as  the  mere 
fact  of  giving  a  promise  creates  a  moral  obligation  to  perform 
it.  And  he  quotes  with  approbation  the  note  to  Wennall  v. 
Adney,  supra,  "  that  an  express  promise  can  only  revive  a  prece- 
dent good  consideration,  which  might  have  been  enforced  at 
law  through  the  medium  of  an  implied  promise  had  it  not  been 
suspended  by  some  positive  rule  of  law,  but  can  give  no  orig- 
inal cause  of  action,  if  the  obligation  on  which  it  is  founded 
never  could  have  been  so  enforced  at  law,  though  not  barred 
by  any  legal  maxim  or  statute  provision.  And  he  thought  the 
case  of  Barnes  v.  Hedley  was  fully  consistent  with  the  doctrine 
of  this  note.  Watkins  v.  Halstead,  2  Sand.  S.  C,  was  a  case  of 
goods  sold  under  such  circumstances  that  the  husband  was 
clearly  liable  for  them,  and  that  no  moral  obligation  rested 
upon  the  wife  to  pay  for  them.  The  promise  after  she  was 
divorced  from  her  husband  to  pay  for  them  was  but  a  promise 
to  pay  the  debt  of  another  person,  and  the  Court  held,  follow- 
ing Littlefield  v.  Shee,  that  there  was  no  good  consideration  to 
support  the  promise.  I  should  judge  from  the  statement  of  the 
case  that  the  goods  were  originally  charged  to  the  husband  and 
sold  on  his  credit,  with  the  understanding  that  if  he  did  not 
pay  for  them  the  wife  would. 

Geer  and  Wife  v.  Archer,  2  Barb.  S.  C.  420,  was  a  case  when 
it  was  held  that  a  mere  moral  or  conscientious  obligation,  un- 
connected with  a  prior  legal  or  equitable  claim,  is  not  sufficient 
to  support  an  express  promise,  and  the  rule  as  laid  down  in  the 
note  in  Bos.  &  Pull.,  supra^  is  cited  as  containing  the  true  test. 

In  the  present  case  can  there  be  any  doubt  but  that  the  de- 
fendant, if  she  had  been  a  single  woman,  would  have  been  un- 
der both  legal  and  equitable  obligation  to  pay  for  these  goods  ? 
The  law  would  have  raised,  in  that  event,  an  implied  promise 
to  pay  for  them  ;  an  express  promise  therefore  revived  a  prece- 


SEC.  II//.]  GOULDING   1'.    DAVIDSON.  Gy/ 

dent  good  consideration,  which  might  have  been  enforced  at 
law  through  the  medium  of  an  implied  promise.  The  inability 
of  the  wife  to  contract  is  precisely  the  same  as  that  of  an  infant, 
and  cannot  be  distinguished  from  it.  If  a  sale  and  delivery  of 
goods  to  an  infant  imposed  a  moral  obligation  upon  him  to  pay 
for  them,  it  is  not  perceived  why  a  sale  and  delivery  of  goods 
to  a  married  woman,  as  in  the  present  case,  solely  on  her  credit 
and  responsibility,  she  being  a  trader,  doing  business  in  her 
own  name,  and  for  her  own  personal  benefit  and  advantage, 
and  holding  herself  out  as  an  unmarried  woman,  does  not  im- 
pose upon  her  the  same  moral  obligation  to  pay  for  them.  This 
case  is  distinguishable  therefore  from  those  of  Littlefield  v.  Shee 
and  Watkins  v.  Halstead  in  that  the  debt  in  the  present  case 
was  never  that  of  the  husband.  The  wife  here  was  a  sole  and 
separate  trader  on  her  own  account  and  for  her  own  personal 
advantage,  and  not  by  permission  of  the  husband.  He  was  not 
therefore  liable  for  the  debts  contracted  by  her,  neither  would 
the  property  so  purchased  by  her  be  liable  to  the  payment  of 
his  debts.  (Sherman  v.  Elder,  decided  at  March  Term,  1862, 
24  N.  Y.  381  ;  2  Bright,  on  Husband  and  Wife,  p.  300  ;  Smith  v. 
Silliman,  ii  How.  Pr.  368.)  This  is  not  in  conflict  with  the 
case  of  Lovett  v.  Robinson,  7  How.  Pr.  105,  as  that  case  was 
put  on  the  ground  that  the  wife  was  living  and  cohabiting  with 
the  husband,  and  it  was  held  there  that  the  goods  then  pur- 
chased by  her  became  those  of  her  husband,  and  the  title  thereto 
was  vested  in  him. 

It  follows  from  these  views  that  the  debt  referred  to  in  the 
complaint,  under  the  circumstances  therein  detailed,  was  not 
the  debt  of  the  defendant's  husband,  but  that  morally  and 
equitably  she  ought  to  pay  the  same.  That  but  for  the  rule  of 
law  prohibiting  a  feme  covert  from  entering  into  or  making  a 
legal  contract,  the  law  would  have  implied  a  promise  on  her 
part  to  pay  for  the  same,  and  that  after  such  disability  ceased, 
she  having  made  an  express  promise  to  pay  the  price  of  such 
goods,  the  moral  obligation  or  duty  resting  on  her  to  make  such 
payment,  formed  a  good  consideration  for  such  promise,  and 
she  is  consequently  liable  to  pay  for  the  same.  The  judgment 
of  the  Supreme  Court  should  therefore  be  reversed,  and  judg- 
ment should  be  given  for  the  plaintiff  on  the  demurrer  with 
costs. 

Emott,  J.  The  action  of  the  plaintiff  must,  of  course,  rest 
upon  the  express  promise  of  the  defendant  made  after  her 
coverture  ended  to  pay  the  debts  or  the  notes  which  represent 
them.  The  question  is  whether  the  previous  sale  and  delivery 
of  the  goods  to  the  defendant  during   coverture  was  a  su.nicient 


6^8  GOULDING   7'.    DAVIDSON.  [cHAP.  I. 

consideration  to  sustain  the  promise.     The  authorities  upon  the 
subject  of  a  promise  by  a  married  woman  after  coverture  to  pay 
a  debt  incurred  or  an  obligation  given  by  her  during  coverture 
are  not  uniform  either  in  their  reasoning  or  their  conclusions. 
One  of  the  earliest  cases  is  Lloyd  v.  Lee,  i  Strange,  94,  where 
a  married  woman  gave  a  note  as  difeiue  sole,  and  after  her  hus- 
band's death  promised  to  pay  it.     It  was  held  that  the  note  was 
void,  and  forbearance  to  sue  it  constituted  no  consideration  for 
a  promise  to  pay  it.     It  will  be  observed  that  there  is  nothing 
in  this  case  to  show  what  was  the  original  consideration  of  the 
note.     On  the  other  hand,  in  Lee  v.  Muggeridge,  5  Taunt.  35, 
a  married  woman  gave  a  bond,  while  married,  to  a  person  for 
money  advanced  by  him  to  her  son-in-law  at  her  request.     After 
her  husband's  death  she  promised  to  pay  that  bond,  and  assump- 
iit  was  sustained   upon  that  promise.     The  language  of  Lord 
Mansfield,  and  of  all  the  other  judges  of  the  Court  of  Common 
Pleas,  was  very  strong  in  this  case  to  the  sufficiency  of  a  mere 
moral  obligation  as  a  consideration  for  a  subsequent  promise. 
But  this  language  has  been  questioned,  and  the  authority  of  the 
decision  weakened  by  the  later  English  authorities.     Thus  in 
Littlefield  v.  Shee,  2   B.  &  A.  Sii,   Lord  Tenterden,  delivering 
the  judgment  of  the  Court  of  King's  Bench,  held  that  a  promise 
by  a  married  woman  to  pay  for  goods  which  had  been  previ- 
ously supplied   to  her  during  coverture  was  void,  because  the 
goods  were  in  law  supplied  to  her  husband,  and  the  price  was  a 
debt  from  him,  not  her.     Lord  Tenterden  observed  in  his  judg- 
ment that  the  doctrine  that  a  moral  obligation  is  a  sufficient 
consideration  for  a  subsequent  promise,  is  one  that  should  be 
taken   with    some    limitation.       Again    in    Meyer   v.    Haworth, 
8  A.  &  E.  467,  Lord  Denman  and  all  the  other  judges  of  the 
King's  Bench  adhered  to  this. doctrine  upon  demurrer  in  a  sim- 
ilar case.     The  Lord   Chief  Justice  said  :   "  The  record  states 
that  goods  were  supplied  to  a  married  woman   who,  after  her 
husband's  death,  promised  to  pay.     This  is  not  sufficient.     The 
debt  was  never  owing  from  her."     The  cases  were  again  ad- 
verted to,  and   the  law  upon   the  subject  of  a  moral  obligation 
as  a  consideration   for  a  promise  discussed  at  some  length  by 
Lord  Denman,  in  Eastwood  v.  Kenyon,    11   A.  &  E.  438.     The 
action  there  was  against  the  husband  of  a  woman  who  had  in- 
herited lands.     The  plaintiff  had  voluntarily  expended  money 
in  the  improvement  of  the  lands  while  she  was  sole  and  an  in- 
fant.    After  she  came  of  age  she  assented  to  it  and  promised  to 
pay  the  account,  and  after  marriage  the  defendant  assented  to 
the  account  and  promised  to  repay  the  plaintiff,  and  the. suit 
was  brought  on   this   express   promise.     It  was  held   that  the 


SEC.  u/l.]  GOULDIXG   V.    DAVIDSON.  C79 

consideration  shown  was  past  and  executed,  and  not  at  the 
request  of  the  defendant  or  of  his  wife,  and  therefore  was  a  mere 
voluntary  courtesy  and  would  not  sustain  the  action.  The  case 
of  Lee  v.  Muggeridge  was  again  questioned  in  this  judgment. 
In  our  own  courts  there  are  i/t'cfa  in  many  cases  to  the  effect  that 
the  moral  obligation  to  pay  a  debt  contracted  during  coverture 
will  be  a  sufficient  consideration  for  an  express  promise  after 
the  disability  is  removed.  (24  Wend.  99  ;  25  Wend.  386-388.) 
The  question,  however,  was  never  distinctly  presented,  as  far 
as  I  am  aware,  until  the  case  of  Watkins  v.  Halstead,  2  Sand. 
S.  C.  311,  where  it  was  determined  by  the  Superior  Court  of 
New  York  adversely  to  the  doctrine  advanced  by  the  plaintiff. 
The  decision  is  approved  by  Parsons,  in  his  work  on  Contracts, 
Vol.  I.,  pp.  358-361,  and  was  followed  by  the  Court  below  in 
this  case. 

There  is  a  distinction  taken  in  some  of  the  cases  between 
obligations  which  are  void  and  such  as  are  only  voidable,  and 
it  is  said  that  where  the  original  undertaking  was  void,  it  can- 
not form  the  basis  or  consideration  for  a  new  promise,  although 
it  may  where  it  is  only  voidable.  Thus  in  Meyer  v.  Haworth, 
8  A.  &  E.  467.  Patterson,  J.,  says,  speaking  of  a  supposed 
promise  of  the  defendant  while  a  married  woman  upon  the  sale 
of  the  goods  :  "  Such  promise  was  not  like  that  of  an  infant 
voidable,  but  was  void."  This  distinction,  however,  applied  to 
the  original  express  contract  alone,  when  there  is  one,  will  not 
explain  all  the  cases.  Thus,  where  money  is  lent  upon  an 
usurious  contract  which  is  totally  void,  yet,  if  the  borrower 
subsequently  promise  to  repay  the  money,  that  promise  will  be 
enforced  by  the  courts.  (2  Taunt.  182  ;  19  John.  147.)  On 
the  other  hand,  where  a  creditor  obtained  from  the  debtor  a 
promissory  note  for  the  residue  of  his  demand,  as  a  condition 
of  his  joining  with  the  other  creditors  in  a  composition  deed 
acknowledging  satisfaction  by  the  receipt  of  a  part  of  their 
debts,  the  note  is  void  in  law  as  a  fraud  upon  the  other  cred- 
itors, and  a  subsequent  promise  to  pay  it  was  held  without  con- 
sideration.     (2  T.  R.  763.) 

Where  the  original  contract  or  promise  is  in  itself  the  whole 
consideration  upon  which  the  new  promise  rests,  the  distinction 
which  has  now  been  adverted  to  is  sufficient  to  dispose  of  the 
case.  If  that  contract  was  wholly  void,  it  alone  will  not  sus- 
tain a  subsequent  promise  to  fulfil  it.  Thus  in  Lloyd  z>.  Lee, 
I  Strange,  94,  already  quoted,  the  new  promise  of  the  defendant 
rested  entirely  upon  her  having  given  a  note  during  coverture. 
This  note  was  void,  and  as  there  was  no  proof  of  any  other  con- 
sideration, either  for  the  note  or  the  new  promise,  the  action 


68o  GOULDING   V.   DAVIDSON.  [CHAP.  I, 

was  not  sustained.  But  where  there  is,  beyond  or  before  the 
void  security  or  agreement,  a  moral  obligation  or  duty  arising 
from  benefit  received  or  otherwise,  which  would  raise  an  im- 
plied promise,  except  for  a  disability  to  make  a  promise  which 
the  law  imposes  ;  a  promise  made  after  the  disability  is  removed 
can  rest  upon  this  benefit  and  duty  as  a  sufficient  consideration. 
The  learned  note  to  Wennall  v.  Adney,  3  B.  &  P.  247-252, 
which  has  been  cited  and  approved  by  the  judges  in  subsequent 
cases,  requires  some  qualification  or  explanation,  where  it  states 
that  "  if  a  contract  between  two  persons  be  void,  and  not  merely 
voidable,  no  subsequent  express  promise  will  operate  to  charge 
the  party  promising,  even  though  he  has  received  a  benefit  from 
the  contract,"  This  remark  is  strictly  true  as  to  a  promise 
founded  upon  the  contract  alone,  but  the  case  of  usurious  loans, 
which  the  borrower  will  be  held  to  pay  upon  a  subsequent 
promise,  shows  that  when,  behind  the  void  contract  there  is  a 
sufficient  consideration,  it  will  sustain  the  subsequent  promise. 
The  rule  stated  in  the  residue  of  the  note  needs  no  qualification, 
and  has  often  received  express  judicial  approval.  "  An  express 
promise  can  only  revive  a  precedent  good  consideration  which 
might  have  been  enforced  at  law  through  the  medium  of  an 
implied  promise,  had  it  not  been  suspended  by  some  positive 
rule  of  law,  but  can  give  no  original  right  of  action  if  the  obli- 
gation on  which  it  is  founded  could  never  have  been  enforced 
at  law,  though  not  barred  by  any  legal  maxim  or  statute  pro- 
vision." The  receipt  of  money,  or  of  any  benefit  or  advantage, 
from  the  promisee,  at  the  request  of  the  promisor,  will  sustain 
a  promise  to  repay  it,  although  the  money  was  advanced  or  the 
benefit  received  under  a  void  contract,  provided  that  the  con- 
sideration for  that  contract  itself  was  not  tarnished  with  fraud 
or  otherwise  invalid.  So  when  the  promisor  was,  at  the  time 
of  the  receipt  of  the  benefit,  under  a  mere  disability  to  contract- 
to  make  it  good,  arising  from  a  rule  or  maxim  of  law,  and 
although  such  a  contract  could  neither  be  expressed  nor  im- 
plied at  the  time,  yet  a  subsequent  promise,  after  the  disability 
is  removed,  will  rest  upon  the  original  benefit,  passing  over 
any  invalid  contract  or  promise  at  the  time. 

But  this  rule  would  not  help  the  case  of  a  subsequent  promise 
to  pay  for  goods  sold  or  delivered  to  the  promisor  while  a  mar- 
ried woman  at  common  law.  The  difficulty  in  such  a  case  was 
that  which  was  seen  in  the  two  cases  in  the  Court  of  King's 
Bench  to  which  I  have  referred.  (2  B.  &  A.  811  ;  8  A.  &  E. 
467.)  In  such  cases  at  common  law  the  goods  were,  in  Jaw, 
supplied  to  the  husband,  and  the  price  was  a  debt  owing  from 
him  and  never  from  her.     If,  therefore,  she  gave  a  note  or  other 


SEC.  II/^]  GOULDING   7'.    DAVIDSON.  68 1 

express  obligation,  it  was  not  only  void,  but  had  no  considera- 
tion. Even  if  her  disability  to  contract  were  removed,  or  did 
not  exist,  yet,  as  long  as  the  rules  of  the  common  law  as  to 
marital  rights  remained  unchanged,  there  was  nothing  from 
which  the  law  could  imply  a  promise  to  pay,  because  the  goods 
supplied  to  her  became  her  husband's,  and  she  acquired  no  bene- 
ficial interest  in  them.  The  law  miglit  imply  a  promise  on  his 
part  to  pay  for  them,  but  not  on  hers.  For  this  reason  I  agree 
that,  at  common  law,  a  promise  by  a  woman,  after  coverture, 
to  pay  for  goods  supplied  to  her,  or  at  her  request,  while  mar- 
ried, could  not  be  sustained. 

But  the  statutes  of  this  State,  passed  in  1S48  and  1S49,  in  re- 
spect to  the  rights  of  married  women,  give  a  different  aspect  to 
such  a  question.  (Laws  of  1848,  p.  30S  ;  Laws  of  1849,  p.  528.) 
Since  these  statutes  any  married  female  may  take  from  any 
person  other  than  her  husband,  and  convey,  personal  property, 
and  it  will  not  be  subject  to  the  disposal  or  to  the  debts  of  her 
husband.  It  is  true  that  these  statutes  did  not  remove  the  dis- 
ability of  married  women  to  make  executory  contracts,  so  that 
any  note  or  obligation  which  a  married  woman  should  make 
upon  the  purchase  or  acquisition  of  property  would  be  void. 
It  is  true  also  that  the  same  disability  prevented  the  implication 
of  any  contract  on  her  part  to  pay  for  such  property.  But  per- 
sonal property,  sold  or  conveyed  in  any  manner  to  a  married 
woman  in  good  faith,  since  the  statute,  by  any  person  other 
than  her  husband  is  hers  and  not  his.  It  becomes  her  sole  and 
separate  property,  and  he  is  neither  entitled  to  it  nor  bound  to 
pay  for  it.  For  this  reason  no  debt  or  engagement  is  implied 
on  his  part  in  consequence  of  its  acquisition.  On  the  other 
hand,  such  acquisition  is  directly  beneficial  to  the  married 
woman  ;  it  becomes  hers  and  not  her  husband's,  and- if  it  were 
not  that  the  law  disabled  her,  a  promise  to  pay  for  it  would  at 
once  be  implied  by  the  law  from  the  fact  of  its  acquisition. 

The  transactions  stated  in  the  complaint  in  the  present  case 
occurred  in  1852,  after  those  statutes.  They  are  to  be  taken  to 
be  actual  and  I'o/id  fide  sales  and  transfers  of  property  to  the 
defendant,  who  was  then  a  married  woman.  She  became,  by 
these  transfers,  the  owner  of  these  goods,  and  although  she 
was  incapable  of  any  agreement,  express  or  implied,  to  pay  for 
them,  yet  that  was  merely  on  account  of  the  existence  of  a  legal 
rule  Of  maxim.  The  delivery  of  the  goods  to  her,  at  her  re- 
quest, under  the  statute  which  made  them  hers,  and  not  her 
husband's,  was  a  good  consideration,  out  of  which  an  implied 
promise  would  at  once  have  arisen  had  it  not  been  suspended 
by  the  rule  of  law  as  to  her  disability  to  make  an  executory 


682  DUSENBURY   V.    IIOYT.  [chap.  I. 

agreement.  When  that  disability  was  removed  it  furnished  a 
sufficient  consideration  for  her  express  promise  upon  which 
these  actions  were  founded.  The  case  comes  precisely  within 
the  rule  of  the  note  to  Wennall  v.  Adney,  and  it  is  relieved  of 
the  difficulty  which  was  fatal  to  the  plaintiff's  action  in  the 
other  cases  referred  to. 

The  demurrer  should  have  been  overruled  in  the  Court  below, 
and  their  judgment  should  be  reversed. 

Denio,  C.J.,  Selden,  Rosekrans,  Marvin,  and  Wright,  JJ., 
concurred.  The  latter  read  an  opinion  in  which  he  only  con- 
sidered the  last  question  discussed  in  the  opinion  of  Balcom,  J., 
agreeing  with  him. 

Judgment  reversed  and  rendered  for  plaintiff  on  the  demurrer. 


BENJAMIN     G.    DUSENBURY,     Executor,     etc.,    Appel- 
lant, V.   MARK    HOYT,   Respondent. 

In  the  Court  of  Appeals  of   New  York,  October  7,   1873. 

[Reported  m  53  New  York  Reports  521.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior 
Court  of  the  city  of  New  York,  affirming  a  verdict  in  favor  of 
defendant  entered  upon  a  verdict,  and  affirming  order  denying 
motion  for  a  new  trial.      (Reported  below,  45  How.  Pr.  R.  147.) 

The  action  was  upon  a  promissory  note.  The  defendant 
pleaded  his  discharge  in  bankruptcy.  Upon  the  trial,  after 
proof  of  the  discharge,  plaintiff  offered  to  prove  a  subsequent 
promise  of  the  defendant  to  pay  the  note.  Defendant  objected 
upon  the  ground  that  the  action  was  upon  the  note,  not  upon 
the  new  promise.  The  Court  sustained  the  objection,  and 
directed  a  verdict  for  defendant,  which  was  rendered  accord- 
ingly. 

Z>.  M.  Porter  for  the  appellant. 

Cephas  Brainerd  for  the  respondent. 

Andrews,  J.  The  thirty-fourth  section  of  the  bankrupt  law 
declares  that  a  discharge  in  bankruptcy  releases  the  bankrupt 
from  all  debts  provable  under  the  act,  and  that  it  may  be  pleaded 
as  a  full  and  complete  bar  to  all  suits  brought  thereon. 

The  legal  obligation  of  the  bankrupt  is  by  force  of  positive 
law  discharged,  and  the  remedy  of  the  creditor  existing  at  the 
time  the  discharge  was  granted  to  recover  his  debt  by  suit  is 
barred.  But  the  debt  is  not  paid  by  the  discharge.  The  moral 
obligation  of  the  bankrupt  to  pay  it  remains.  It  is  due  in  con- 
science, although  discharged  in   law,  and  this  moral  obligation. 


SEC. 


ll//.]  DUSENI3UKY   V.    IIOVT.  G63 


uniting  with  a  subsequent  promise  by  the  bankrupt  to  pay  the 
debt,  gives  a  right  of  action.  It  was  held  in  Shippy  r.  Hender- 
son, 14  J.  R.  178,  that  it  was  proper  for  the  plaintiff,  when  the 
bankrupt  had  promised  to  pay  the  debt  after  his  discharge,  to 
bring  his  action  upon  the  original  demand,  and  to  reply  the 
■new  promise  in  avoidance  of  the  discharge  set  out  in  the  plea. 
The  Couit,  following  the  English  authorities,  said  that  the 
replication  of  the  new  promise  was  not  a  departure  from  the 
declaration,  but  supported  it  by  removing  the  bar  interposed 
by  the  plea,  and  that  in  point  of  pleading  it  was  like  the  cases 
where  the  defence  of  infancy  or  the  Statute  of  Limitations  was 
relied  upon.  The  case  of  Shippy  v.  Henderson  was  followed 
in  subsequent  cases,  and  the  doctrine  declared  in  it  became, 
prior  to  the  Code,  the  settled  law.  (McNairz'.  Gilbert,  3  Wend. 
344  ;  Wait  V.  Morris,  6  Wend.  394  ;  Fitzgerald  ?■.  Alexander, 
19  Wend.  402.) 

The  question  whether  the  new  promise  is  the  real  cause  of 
action,  and  the  discharged  debt  the  consideration  which  sup- 
ports it,  or  whether  the  new  promise  operates  as  a  waiver  by 
the  bankrupt  of  the  defence  which  the  discharge  gives  him 
against  the  original  demand,  has  occasioned  much  diversity  of 
judicial  opinion.  The  former  view  was  held  by  Marcy,  J.,  in 
Depuy  V.  Swart,  3  Wend.  139,  and  is  probably  the  one  best  sup- 
ported by  authority.  But,  after  as  before  the  decision  in  that 
case,  the  Court  held  that  the  original  demand  might  be  treated 
as  the  cause  of  action,  and,  for  the  purpose  of  the  remedy,  the 
decree  in  bankruptcy  was  regarded  as  a  discharge  of  the  debt 
sud  modo  only,  and  the  new  promise  as  a  waiver  of  the  bar  to 
the  recovery  of  the  debt  created  by  the  discharge.  We  are  of 
opinion  that  the  rule  of  pleading,  so  well  settled  and  so  long 
established,  should  be  adhered  to.  The  original  debt  may  still 
be  considered  the  cause  of  action  for  the  purpose  of  the  remedy. 
The  objection  that,  as  no  replication  is  now  required,  the  plead- 
ings will  not  disclose  the  new  promise,  is  equally  applicable 
where  a  new  promise  is  relied  upon  to  avoid  the  defence  of 
infancy  or  the  Statute  of  Limitations,  and  in  these  cases  the 
plaintiff  may  now,  as  before  the  Code,  declare  upon  the  orig- 
inal demand.     (Esselstyn  v.  Weeks,  12  N.  Y.  635.) 

The  offer  of  the  plaintiff  to  prove  an  unconditional  promise 
by  the  defendant,  after  his  discharge  to  pay  the  debt,  was  im- 
properly overruled,  and  the  judgment  should,  for  this  reason, 
be  reversed,  and  a  new  trial  ordered  with  costs  to  abide  the 
event. 

All  concur,  except  Folger,  J.,  not  voting. 

Judgment  reversed. 


684  HAYWARD   V.   BARKER  AND    WIFE.  [CHAP.  I. 

SAMUEL   HAYWARD  v.  GEORGE    BARKER  and  WIFE. 

In  the  Supreme  Court  of  Vermont,  January  Term,  1880. 

{Reported  in  52   Ventiont  Reports  429.] 

General  assumpsit  brought  to  the  Municipal  Court  of  Rut- 
land.    Trial  by  the  Court,  Everts,  J. 

It  appeared  that  the  debt  that  was  sought  to  be  recovered 
was  incurred  by  the  defendant  wife  before  her  intermarriage 
with  the  defendant  husband,  and  while  she  was  the  wife  of  one 
Washburn,  but  while  she  lived  apart  from  him.  It  appeared 
that  Washburn  deserted  her  without  any  agreement  for  separa- 
tion or  for  separate  maintenance,  and  contributed  nothing  to 
her  support  ;  that  she,  being  engaged  in  no  business,  supported 
herself  by  such  work  as  she  could  get  to  do  ;  and  that,  while 
she  was  living  apart  from  Washburn  as  aforesaid,  she  became 
indebted  to  the  plaintiff,  who  knew  she  was  a  married  woman, 
for  groceries  and  other  goods  purchased  by  her  on  her  own 
credit,  and  used  by  her  in  her  own  support.  At  about  the  same 
time  the  plaintiff  being  about  to  enforce  a  demand  against  the 
wife's  brother,  which  was  secured  by  a  lien  on  a  sewing-machine, 
the  wife  was  induced  to  assume  her  brother's  debt,  and  accord- 
ingly gave  the  plaintiff  her  promissory  note  for  $33.75,  the 
amount  of  her  account  for  goods  and  of  her  brother's  debt,  and 
took  the  machine,  which  she  kept  until  after  this  action  was 
brought.  The  wife  afterward  obtained  a  divorce,  and  married 
the  defendant  husband.  After  the  divorce,  and  before  the  mar- 
riage, the  wife  promised  the  plaintiff  to  pay  the  amount  of  her 
note  and  interest,  but  there  was  no  new  consideration  for  such 
promise. 

The  Court  rendered  judgment, /r<?/^r;«a;,  for  the  plaintiff  for 
the  amount  of  the  note,  with  interest  and  cost  ;  to  which  the 
defendants  excepted. 

J.  B.  Phelps  for  the  defendants. 

J.  C.  Baker  for  the  plaintiff. 

The  opinion  of  the  Court  was  delivered  by 

Barrett,  J.  Whether  this  suit  can  be  maintained  depends 
\  on  the  legal  quality  and  force  of  the  promise  made  by  the  wife 
after  her  divorce  from  her  first  husband,  and  while  sole,  before 
marrying  her  present  husband,  the  co-defendant  in  this  case. 
The  property  for  the  payment  for  which  she  made  the  promise 
while  so  sole,  had  been  sold  to  her  while  under  coverture  with 
her  former  husband.     If  that  promise  so  bound   her  that  an 


SEC.  u//.]  IIAYWARD   r.    BARKER   AND   WIFE.  685 

action  could  have  been  maintained  upon  it  against  her  before 
marrying  her  present  husband,  then  this  action  can  be  main- 
tained against  her  and  said  husband.  Otherwise  it  cannot  be 
maintained.  It  is  agreed  that  any  contract  or  promise  she 
made  when  she  procured  the  property  to  pay  for  it  was  wholly 
void  in  law,  and  not  enforceable  in  any  way  or  at  any  time. 
But  it  is  claimed  that  a  moral  obligation  sprung  from  the  re- 
ceiving of  the  property  as  upon  a  purchase,  which  constituted 
a  legal  and  valid  consideration  for  the  alleged  promise  made 
while  she  was  afterward  sole,  and  that  promise  became  an 
actionable  contract. 

The  moral  obligation  spoken  of  in  the  cases  as  being  a  suffi- 
cient consideration  to  maintain  an  express  promise  is  always  in 
reference  to  and  springing  from  a  transaction  or  a  subject  as  to 
which  the  party  at  the  time  had  already  made,  or  was  capable 
of  making,  a  contract  that  would  not  be  void.  In  Barlow  v. 
Snjith,  4  Vt.  139,  the  subject  of  moral  obligation  was  not  in- 
volved. It  was  a  case  upon  an  express  promise  in  writing  that 
showed  no  consideration  on  its  face,  and  no  subject  for  any 
antecedent  moral  obligation  was  claimed  to  exist.  The  remarks 
of  Baylies,  J.,  on  the  subject  of  moral  obligation  as  a  consider- 
ation were  obiter.  Yet  all  his  illustrations  fall  within  the  asser- 
tion above  made.  In  Glass  v.  Beach,  5  Vt.  172,  there  was  a 
legal  consideration  for  the  promise,  which  was  continuing  and 
operative  at  the  time  the  promise  alleged  in  the  declaration  was 
made.  So  it  was  not  even  the  case  of  a  past  consideration.  In 
Boothe  V.  Fitzpatrick,  36  Vt.  681,  there  was  a  subject  matter 
and  competent  parties  for  the  making  of  a  valid  contract  at  the 
time  the  consideration  was  accruing  by  the  keeping  of  the  beast 
for  the  benefit  of  the  defendant  by  the  plaintiff.  If  such  keep- 
ing had  been  by  the  request  of  defendant,  there  would  have 
been  a  contract  upon  a  present  legal  consideration  for  the  prom- 
ise which  the  law  would  have  implied.  The  express  promise  in 
that  case  was  held  to  be  equivalent  to  a  previous  request.  This 
was  the  only  point  material  to  be  held  in  order  to  maintain  the 
transaction  as  a  contract  of  promise  upon  legal  consideration. 
The  moral  element  had  no  function  in  the  case.  There  was  a 
contract  made  up  entirely  and  exclusively  of  legal  elements. 

In  the  case  in  hand  it  is  agreed  that  at  the  time  she  had  the 
articles  of  the  plaintiff,  the  female  defendant  did  not  and  could 
not  make  a  promise  to  pay  that  was  not  void.  The  promise 
thus  made  could  not  be  ratified  and  confirmed,  and  thus  have 
effect  by  reason  thereof,  as  in  case  of  infancy,  bankruptcy. 
Statute  of  Limitations,  and  the  like.  No  obligation,  moral  or 
legal,  in  the  sense  of  any  of  the  cases  or  the  dicta  of  judges  and 


686  KENT   V.    RAXD.  [CHAP.  I. 

text-books,  could  be  said  to  spring  from  a  transaction  in  refer- 
ence to  which  she  was  utterly  incapable  of  making  a  contract 
that  would  not  be  void — utterly  incapable  of  making  a  contract 
that  could  become  operative  by  ratification.  What  is  claimed 
is  not  that  the  promise  made  after  the  divorce  ratified  a  promise 
or  a  contract  made  by  her  during  coverture,  but  that  such 
promise  makes  a  valid  new  contract  by  virtue  of  a  previous 
transaction  that  could  not  become  an  element  in  a  valid  con- 
tract at  the  time  when  it  was  transacted. 

The  utmost  extent  to  which  any  case  has  gone  that  can  be 
considered  as  carrying  force  as  authority,  is  by  way  of  obviating 
the  effect  of  the  doctrine  as  to  promises  upon  past  considera- 
tions, when  literally  applied — the  holding  that  where  "  the  con- 
sideration, even  without  request,  moves  directly  from  the  plain- 
tiff to  the  defendant,  and  inures  directly  to  the  defendant's 
benefit,  the  promise  is  binding,  though  made  upon  a  past  con- 
sideration." The  promise  made  by  the  female  defendant  after 
the  divorce  would  not  have  been  actionable  against  her  in  a  suit 
brought  while  sole.  It  follows  of  course  that  it  is  not  action- 
able in  a  suit  against  her  and  her  present  husband.  The  state 
of  the  law  on  this  subject  is  shown  in  i  Chit.  Cont.  52  et  seq. 
(see  note  c,  56),  and  the  distinctions  named  in  this  opinion  are 
recognized  and  regarded. 

This  state  of  the  law  is  not  inconsistent  with  the  holding  and 
decision  36  Vt.  supra,  as  therein  said  by  Judge  Peck. 

Judgment  reversed,  and  judgment  for  defendants. 


KENT  V.   RAND,  Administrator. 

In  the  Supreme  Court  of  New  Hampshire,   June,   1886. 

\Reported  in  64  Neiv  Hainpshire  Reports  45.] 

Assumpsit  for  money  had  and  received  by  the  defendant's 
intestate,  Mary  Snow,  to  the  plaintiff's  use.  Facts  found  by  a 
referee.  In  the  summer  of  1855  Mary  Snow,  being  then  a  mar- 
ried woman,  borrowed  from  the  plaintiff  $275  for  the  use  of  her 
husband  in  his  own  business.  At  that  time  she  had  title  by 
deed  from  her  father  of  his  homestead  in  Rochester,  of  which 
her  father  held  a  life  lease  from  her.  Her  husband  died  in 
1858,  her  father  in  1859,  and  her  mother  in  i860.  The  referee 
also  found  facts  which,  it  was  claimed,  showed  promises  by 
Mary  Snow  to  pay  the  debt,  made  on  several  occasions  between 


SEC.  n/l.]  KENT   r.    RAXD.  68/ 

1S55  and  the  time  of  her  death  in  1SS3,  while  she  was  sole  and 
the  owner  of  property  in  her  own  right,  the  latest  of  which  was 
within  six  years  before  her  death. 

Worc-ester  c^  Gafncy  for  the  plaintiff. 

T.  J.  Smith  and  /.  G.  Hall  for  the  defendant. 

Smith,  J.  When  the  defendant's  intestate  borrowed  the  sum 
of  $275  of  the  plaintiff  in  1855  she  was  a  married  woman.  The 
money  was  borrowed  for  the  use  of  her  husband  in  his  business, 
and  there  is  no  evidence  that  it  was  otherwise  used  or  applied. 
She  had,  at  the  time  of  the  loan,  title  by  deed  to  her  father's 
homestead  in  Rochester,  subject  to  her  lease  to  him  for  the 
term  of  his  life.  It  does  not  appear  that  she  held  this  property 
to  her  sole  and  separate  use,  or  that  the  promise  made  by  her 
to  the  plaintiff  w^as  in  respect  to  her  separate  property.  Her  '  / 
common-law  disability,  therefore,  rendered  her  contract  void. 
Bailey  v.  Pearson,  29  N.  H.  77  ;  Ames  v.  Foster,  42  N.  H.  381  ; 
Shannon  v.  Canney,  44  N.  H.  592  ;  Hammond  v.  Corbett, 
51  N.  H.  311  ;  Batchelder  v.  Sargent,  47  N.  H.  262  ;  Muzzey  v. 
Reardon,  57  N.  H.  378  ;  Read  r.  Hall,  57  N.  H.  482  ;  Messer  v. 
Smyth,  58  N.  H.  298  ;  Penacook  Savings  Bank  v.  Sanborn, 
60  N.  H.  558.  The  question  then  is,  whether  assumpsit  can  be 
maintained  upon  her  promise  to  pay  the  debt  made  after  the 
death  of  her  husband  ;  or,  in  other  words,  whether  a  moral  obli- 
gation to  pay  money  or  perform  a  duty  is  a  good  consideration 
for  a  promise  to  pay  or  to  do  the  duty. 

In  a  note  to  Wennall  v.  Adney,  3  Bos.  &  Pull.  249,  is  a  review 
of  many  of  the  English  cases,  the  result  being  summed  up  as 
follows  :  "  An  express  promise,  therefore,  as  it  should  seem, 
can  only  revive  a  precedent  good  consideration,  which  might 
have  been  enforced  at  law,  through  the  medium  of  an  implied 
promise,  had  it  not  been  suspended  by  some  positive  rule  of 
law,  but  can  give  no  original  right  of  action,  if  the  obligation 
on  which  it  is  founded  never  could  have  been  enforced  at  law, 
though  not  barred  by  any  legal  maxim  or  statute  provision." 
The  doctrine  of  this  note  is  approved  in  Smith  v.  Ware,  13  Johns. 
257  ;  Mills  V.  Wyman,  3  Pick.  207  ;  Goodright  v.  Straphan, 
Cowp.  201  ;  Littlefield  v.  Shee,  2  B.  &  Ad.  811  ;  Meyer  v. 
Haworth,  8  A.  &  E.  467  ;  Eastwood  v.  Kenyon,  11  A.  &  E.  438  ; 
Jennings  v.  Brown,  9  M.  &  W.  501,  and  in  i  Pars.  Cont.  432-436. 

In  Lloyd  v.  Lee,  i  Stra.  94  (decided  in  17 18),  the  facts  were 
these  :  A  married  woman  gave  a  promissory  note  as  a.  feme  sole, 
and  after  her  husband's  death,  in  consideration  of  forbearance, 
promised  to  pay  it.  In  an  action  against  her  it  was  insisted 
that  though  being  under  coverture  at  the  time  of  giving  the 
note,  it  was  voidable  for  that  reason  ;  yet  by  her  subsequent 


688  KENT   V.    RAND.  [CHAP.  I. 

promise,  when  she  was  of  ability  to  make  a  promise,  she  had 
made  herself  liable,  and  the  forbearance  was  a  new  considera- 
tion. "  But  the  Chief  Justice  held  the  contrary,  and  that  the 
note  was  not  barely  voidable,  but  absolutely  void  ;  and  forbear- 
ance, where  originally  there  is  no  cause  of  action,  is  no  consid- 
eration to  raise  an  assumpsit.  But  he  said  it  might  be  otherwise 
where  the  contract  was  but  voidable.  And  so  the  plaintiff  was 
called." 

Lee  V.  Muggeridge,  5  Taunt.  36  (decided  in  1813),  a  similar 
case,  was  decided  the  other  way.  The  facts  were  as  follows  : 
A  married  woman,  having  an  estate  settled  to  her  separate  use, 
gave  a  bond  for  repayment  by  her  executors  of  money  advanced 
at  her  request  on  security  of  the  bond  to  her  son-in-law.  After 
her  husband's  decease  she  wrote  a  letter  addressed  to  the  plain- 
tiff, stating  "  that  it  was  not  in  her  power  to  pay  the  bond  off, 
her  time  here  was  short,  and  that  it  would  be  settled  by  her 
executors."  The  plaintiff  brought  assutnpsit  on  this  promise 
against  her  executors,  and  recovered  a  verdict.  The  defendants 
m.oved  in  arrest  of  judgment,  on  the  ground  that  no  sufficient 
consideration  was  shown  for  the  promise.  The  verdict  was  sus- 
tained upon  the  ground  that  a  moral  obligation  is  a  good  cause 
for  a  promise  to  pay. 

In  Littlefield  v.  Shee,  2  B.  &  Ad.  811  (a.d.  1831),  the  facts 
were  these  :  The  plaintiff's  testate  in  his  lifetime  supplied  the 
defendant,  a  married  woman  whose  husband  was  absent,  with 
butcher's  meat.  After  the  death  of  her  husband  the  defendant 
promised  to  pay  when  it  should  be  in  her  power,  and  her  ability 
to  pay  was  proved  at  the  trial.  The  plaintiff  was  nonsuited, 
and  the  nonsuit  was  sustained  upon  the  ground  that  it  appeared 
the  goods  were  supplied  to  the  wife  while  her  husband  was 
living,  so  that  the  price  constituted  a  debt  due  from  him.  Lord 
Tenterden,  C.J.,  in  alluding  to  Lee  v.  Muggeridge,  said  ;  "  The 
doctrine  that  a  moral  obligation  is  a  sufficient  consideration  for 
a  subsequent  promise  is  one  which  should  be  received  with 
some  limitation." 

In  Meyer  z;.  Haworth,  8  A.  &  E.  467  (a.i>.  1838),  the  defendant 
pleaded  coverture  to  a  declaration  in  assumpsit  for  goods  sold 
and  delivered.  The  plaintiff  replied  that  the  defendant  was  at 
the  time  of  the  contract  separated  from  her  husband,  and  living 
in  open  adultery  ;  that  the  plaintiff  did  not  know  of  the  mar- 
riage or  adultery  :  and  that  the  defendant,  after  her  husband's 
death  and  before  action  brought,  in  consideration  of  the  pre- 
mises, promised  to  pay.  Upon  demurrer  Lord  Denman,  C.J., 
said  the  subsequent  promise  was  "not  sufficient.  The  debt 
was  never  owing  from   her.      If  there    was  a  moral  obligation, 


SEC.  u//.]  KENT  V.    RAND.  C89 

that  should  have  been  shown."  Littledale,  J.,  said  :  "  If  vhere 
was  any  moral  obligation,  it  should  have  been  stated.  The 
replication  does  not  support  the  declaration.  The  promise  in 
the  declaration  was  altogether  void.  This  is  not  like  the  case 
of  an  infant  whose  promise  is  voidable  only." 

■Eastwood  V.  Kenyon,  11  A.  &  E.  438  (a.d.  1840),  decides  that 
a  pecuniary  benefit  voluntarily  conferred  by  the  plaintiff  and 
accepted  by  the  defendant  is  not  such  a  consideration  as  will 
support  an  action  of  assu/npsit  on  a  subsequent  express  promise 
by  the  defendant  to  reimburse  the  plaintiff.  Lord  Denman,  C.J., 
commenting  on  Lee  v.  Muggeridge,  said  the  remark  of  Lord 
Tenterden  in  Littlefield  v.  Shee,  "  that  the  doctrine  that  a  moral 
obligation  is  a  sufficient  consideration  for  a  subsequent  promise 
is  one  which  should  be  received  with  some  limitation,"  amounts 
to  a  dissent  from  the  authority  of  that  case. 

Cockshott  z'.  Bennett,  2  T.  R.  763  (a.d.  1788),  decides  that  a 
subsequent  promise  to  pay  a  note  void  on  the  ground  of  fraud, 
is  a  promise  without  consideration  which  will  not  maintain  an 
action  ;  and  in  Jennings  v.  Brown,  9  M.  &  W.  501,  it  was  said, 
"  A  mere  moral  consideration  is  nothing." 

Attempts  have  been  made  to  distinguish  the  case  of  Lee  v. 
Muggeridge  from  Lloyd  v.  Lee  and  subsequent  cases  ;  but  the 
doctrine  of  the  note  in  Wennall  v.  Adney,  that  a  mere  moral 
obligation  is  not  sufficient  to  support  an  express  promise  is  gen- 
erally recognized  as  correct.      Mills  v.   Wyman,   3    Pick.    207  ; 
Loomis  z/.  Newhall,  15  Pick.  159  ;  White  v.  Bluett,  24  E.  L.  &  E. 
434  ;  Cook  V.    Bradley,    7   Conn.   57  ;  Hawley  v.    Farrar,  i   Vt. 
420  ;    Ingraham   v.   Gilbert,    20   Barb.    152  ;    Bates  v.    Watson, 
I   Sneed,   376;  Parker  v.   Carter,   4  Munf.   273;  M'Pherson  v. 
Rees,  2  Penr.  &  W.  521  ;  Frear  v.  Hardenbergh,  5  Johns.  272  ; 
Society  v.  Wheeler,  2  Gall.  143  ;  Broom  Leg.  Max.  746  ;   i  Pars. 
Cont.  432  note  /,  435  ;  Langdell,  Sum.  Law  of  Cont.,  ss.  71-79. 
In  cases  of  bankruptcy  and  the  Statute  of  Limitations  the  law 
only  suspends  the  remedy.     It  does  not  extinguish  the  debt. 
Bank  v.  Wood,  59  N.  H.  407  ;  Badger  v.  Gilmore,  33  N.  H.  361  ; 
Wiggin  V.  Hodgdon,  62,  N.  H.  39.     The  contracts  of  infants  are 
voidable,  and  may  be  ratified  by  an  express  promise  after  age. 
In  this  respect  they  are  distinguished  from  the  contracts  of  mar- 
ried women,  which,   owing  to  the  disability  of  coverture,  are 
void  at  common  law.     Being  void,  no  debt   ever  existed  ;  and 
hence  they  furnish  no  consideration   for  a  subsequent  promise 
made  during  widowhood.     Watkins  v.  Halstead,  2  Sandf.  311  ; 
Waters  v.  Bean,  15  Geo.  358  ;   i  Pars.  Cont.  435.     This  doctrine 
has  received  assent  in  this  State.     French  v.  Benton,  44  N.  H. 
28,  31. 


690 


KENT   V.    RAND. 


[chap.  I. 


It  has  been  assumed  in  this  discussion  that  the  defendant's 
testate  promised  to  pay  the  debt  within  six  years  of  her  death. 
Whether  the  evidence  was  sufficient  to  warrant  such  a  finding 
is  a  question  we  have  no  occasion  to  consider.  The  defendant 
is  entitled  to  judgment  on  the  report. 

Bingham,  J.,  did  not  sit  ;  the  others  concurred. 

Case  discharged. 


CHAPTER   II. 
CONTRACTS   UNDER   SEAL. 

Section  I. — Signing  and  Sealing.* 


CROMWELL  V.  GRUNSDEN. 

In  the  King's  Bench,  Easter  Term,  1698. 

\_Reported  in  2  Salkeld  462.] 

In  debt  upon  an  obligation,  tlie  plaintiff  declared,  quod  cum 
Robertus  Erlin,  pritno  die  Julii  1674,  per  scrtpttun  suutn  obligatorium 
concessit  se  teneri  and  firtniter  obligari  in  quadragint.  libris,  etc.  Et 
profert^  etc.,  cujus  dat.  est  eisdeni  die  and  anno.  Upon  non  est  fac- 
tum pleaded,  the  jury  found  the  defendant  made  a  deed  in  hcec 
verba,  and  that  was,  in  pretnid.  vigin.  in  quadrans  libris,  dated 
July  ist,  anno  regni  Car.  2,  millino  sexcent.  scptua.  qto.,  and  signed 
Robert  Erlwin,  conditioned  to  pay  ;!^2o,  and  if  this  be  the  same 
deed,  etc.     Et  per  Cur. 

First,  the  variance  between  the  name  signed,  which  is  Erlwin, 
and  the  name  in  the  obligation,  which  is  Erlin,  is  not  material, 
because  subscribing  is  no  essential  part  of  the  deed  ;  sealing  is 
sufficient.  The  bond  is  a  deed  without  it,  and  so  it  is  of  the 
year  of  the  king.     See  Yelv.  193.' 


WARREN  V.  LYNCH. 

In  the  Supreme  Court  of  Judicature  of  New  York, 
February  Term,  1810. 

[Reported  in  5  Johnson  239.] 

This  was  an  action  of  assutnpsit  brought  by  the  plaintiff,  as 
the  first  endorser  of  a  promissory  note,  against  the  defendant 
as  maker.     The  note  was  as  follows  : 

"  Petersburg,  Va.,  August  27,  1807. 
"  Four  months  after  date  I  promise   to  pay  Hopkins  Robert- 

'  It  has  been  found  desirable  to  insert  in  this  chapter  cases  arising  upon 
sealed  instruments  not  contractual  in  character.— Ed, 

*  Only  so  much  of  the  case  is  given  as  relates  to  this  question.— Ed. 


692  WAKREX   V.    LYNCH.  [CHAP.  11. 

son  or  order,  the  sum  of  $719.12^  cents,  witness  my  hand  and 

seal.     Payable  in  New  York. 

"  Thomas  Lynch.    (L.S.)" 

The  flourish  and  initials  L.  S.  at  the  end  of  the  maker's  name 
constituted  what  was  called  his  seal.  The  defendant  pleaded 
non  assumpsit,  with  notice  of  special  matter  to  be  given  in  evi- 
dence at  the  trial. 

In  a  conversation  between  the  plaintiff  and  defendant,  at  the 
office  of  the  plaintiff's  attorney,  before  any  suit  was  commenced, 
the  defendant  admitted  the  execution  of  the  note,  but  said  he 
did  not  consider  himself  answerable,  having  paid  the  amount 
to  Mason  &  Smedes,  of  New  York,  under  certain  proceedings 
against  him  in  Virginia.  On  its  being  suggested  that  some 
difficulty  might  arise  in  declaring  on  the  note,  as  it  purported 
to  be  sealed,  and  a  suit  was  in  contemplation,  the  defendant 
signed  a  written  agreement  dated  April  15th,  1808,  entitled  in 
the  cause,  declaring  that  the  note  upon  which  the  suit  was 
brought,  though  it  purported  to  be  sealed,  had,  in  fact,  no 
wafer  or  wax  thereto,  and  was  to  be  considered  as  a  common 
promissory  note,  and  that  all  objections  as  to  form  were  to  be 
waived. 

It  was  admitted  by  the  plaintiff's  counsel  that  by  the  laws  of 
Virginia  a  note  executed  in  the  manner  this  was  had  all  the 
efficacy  of  an  instrument  sealed  with  a  wafer  or  wax. 

The  judge  at  the  trial  was  of  opinion,  on  this  evidence,  that 
the  note  was  to  be  considered  as  a  negotiable  promissory  note, 
and  the  plaintiff  as  an  innocent  holder  for  a  valuable  consider- 
ation. 

To  prove  that  the  defendant  had  paid  the  amount  of  the  note 
to  Mason  &  Smedes,  of  New  York,  and  to  impeach  the  title  of 
the  plaintiff,  the  following  evidence,  though  objected  to  by  the 
plaintiff,  was  admitted  by  the  judge.' 

On  this  evidence  the  judge  was  of  opinion  that  the  plaintiff 
was  entitled  to  recover,  and  under  his  direction  the  jury  found 
a  verdict  for  the  plaintiff  for  the  amount  of  the  note  with  in- 
terest. 

Baldjvin  for  the  defendant. 

T.  L,  Ogden,  contra. 

Kent,  C.J.,  delivered  the  opinion  of  the  Court.  The  two 
questions  made  upon  this  case  are  :  i.  What  is  the  legal  import 
of  the  instrument  upon  which  the  suit  is  brought  ?'  and  2.  Was 
the  evidence  sufficient  to  entitle  the  plaintiff  to  recover  ? 

*  The  statement  of  evidence  has  been  omitted. — Ed. 

'  Only  so  much  of  the  opmion  is  given  as  relates  to  this  question. — Ed. 


SEC.  I.]  WARREX  7:   i.vxcir.  695 

I.  The  note  was  given  in  \'irginia,  and  by  the  laws  of  that 
State  it  was  a  sealed  instrument  or  deed.  But  it  was  made 
payable  in  New  York,  and  according  to  a  well-settled  rule,  it  is 
to  be  tested  and  governed  by  the  law  of  this  State.  (4  Johns. 
Rep.  285.)  Independent  then  of  the  written  agreement  of  the 
parties  (and  on  the  operation  of  which  some  doubt  might  pos- 
sibly arise),  this  paper  must  be  taken  to  be  a  promissorv  note, 
without  seal,  as  contradistinguished  from  a  specialty.  We  have 
never  adopted  the  usage  prevailing  in  Virginia  and  in  some 
other  States,  of  substituting  a  scrawl  for  a  seal  ;'  and  what  was 

^  Was  the  will  of  Ellen  Wain  under  seal  ?  This  is  the  question  upon 
which  the  determination  of  this  case  depends.  It  is  plain  that  in  the  prep- 
aration of  her  last  will,  the  testatri.K  intended  to  exercise  this  power  of  ap- 
pointment and  to  exercise  it  in  the  way  designated  by  the  donor.  She 
made  particular  reference  to  the  property  over  which  she  had  the  power, 
and  in  proper  form  and  phrase  disposed  of  it,  designating  and  appointing 
the  persons  to  receive  it.  She  subscribed  her  name  with  the  mark  follow- 
ing, in  the  presence  of  two  witnesses,  and  in  the  testimonium  clause  states, 
in  terms,  that  she  has  affixed  her  hand  and  seal.  Under  such  special  cir- 
cumstances may  we  not  assume  that  the  testatrix  intended  this  dash  of  the 
pen  as  a  seal  ?  A  seal  is  not  necessarily  of  any  particular  form  or  figure  ; 
when  not  of  wax  it  is  usually  made  in  the  form  of  a  scroll,  but  the  letters 
"  L.  S."  or  the  word  "  Seal,"  enclosed  in  brackets  or  in  some  other  design, 
are  in  frequent  use.  It  may,  however,  consist  of  the  outline  without  any 
enclosure  ;  it  may  have  a  dark  ground  or  a  light  one  ;  it  may  be  in  the  form 
of  a  circle,  an  ellipse,  or  a  scroll,  or  it  may  be  irregular  in  form  ;  it  may  be 
a  simple  dash  or  flourish  of  the  pen.  Long  v.  Ramsay,  i  S.  &  R.  72.  Its 
precise  form  cannot  be  defined  ;  that,  in  each  case,  will  depend  wholly  upon 
the  taste  or  fancy  of  the  person  who  makes  it. 

The  mere  fact  that  in  the  testimonium  clause  the  testatrix  states  that  she 
has  affixed  her  hand  and  seal,  is  insufficient  to  constitute  the  instrument  a 
writing  under  seal,  if  in  fact  there  be  no  seal  ;  but  if  there  be  any  mark  or 
impression  which  might  reasonably  be  taken  for  a  seal,  this  statement  of 
the  testatrix  will  certainly  afford  the  strongest  evidence  that  the  mark  was 
so  intended.  In  Taylor  7/.  Glaser,  supra,  there  was  nothing  but  a  flourish 
of  the  pen  below  the  signature,  and  it  was  offered  to  be  shown  that  this 
accompanied  Glaser's  ordinary  signature.  There  was  nothing  on  the  face 
of  the  paper  which,  in  the  opinion  of  the  Court,  the  obligor  could  have  in- 
tended for  a  seal.  To  the  same  effect  is  the  case  of  Duncan  v.  Duncan, 
I  W.  322,  where  a  ribbon  had  been  inserted,  manifestly  as  a  preliminary  to 
the  act  of  sealing,  which  act  was  never  performed. 

Whether  the  instrument  is  under  seal  or  not,  is  a  question  to  be  deter- 
mined by  the  Court  upon  inspection  ;  and  whether  or  not  any  mark  or  im- 
pression shall  be  held  to  be  a  seal,  depends  wholly  upon  the  intention  of  the 
party  executing  the  instrument,  as  exhibited  on  the  face  of  the  paper  itself. 
The  dash,  which  follows  the  signature  in  this  case,  it  must  be  conceded,  is 
not  in  the  usual  or  ordinary  form  of  a  seal,  but  as  no  particular  form  is  pre- 
scribed by  law,  we  think  that  upon  a  consideration  of  the  plain  require- 
ments of  the  writing  creating  the  power,  and  of  the  manifest  purpose  and 
effort  of  the  testatrix  to  execute  that  power,  in  the  manner  designated,  and 
her  avowed  purpose  to  affix  a  seal,  together  with  the  presence  of  a  mark  or 


694 


WARREN  V.    LYNCH. 


[chap.  II. 


said  by  Livingston,  J.,  in  the  case  of  Meredith  v.  Hinsdale, 
2  Caines,  362,  in  favor  of  such  a  substitute,  was  his  own  opinion 
and  not  that  of  the  Court.  A  seal,  according  to  Lord  Coke 
(3  Inst.  169),  is  wax  with  an  impression.  Sigillu/n  est  cera  im- 
pressa,  quia  cera  sine  ivipressione  noii  est  sigillum.  A  scrawl  with 
a  pen  is  not  a  seal,  and  deserves  no  notice.  The  law  has  not 
indeed  declared  of  what  precise  materials  the  wax  shall  con- 
sist ;  and  whether  it  be  a  wafer  or  any  other  paste  or  matter 
sufficiently  tenacious  to  adhere  and  receive  an  impression,  is 
perhaps  not  material.  But  the  scrawl  has  no  one  property  of 
a  seal.  Multum  ahlicdit  imago.  To  adopt  it  as  such  would  be  at 
once  to  abolish  the  immemorial  distinction  between  writings 
sealed  and  writings  not  sealed.  Forms  will  frequently,  and  espe- 
cially when  they  are  consecrated  by  time  and  usage,  become 
substance.  The  calling  a  paper  a  deed  will  not  make  it  one  if 
it  want  the  requisite  formalities.  "  Notwithstanding,  says 
Perkins  (§  129),  that  words  obligatory  are  written  on  parchment 
or  paper,  and  the  obligor  delivereth  the  same  as  his  deed,  yet 
if  it  be  not  sealed,  at  the  time  of  the  delivery,  it  is  but  an 
escrow!,  though  the  name  of  the  obligor  be  subscribed."  I  am 
aware  that  ingenious  criticism  may  be  indulged  at  the  expense 
of  this  and  of  many  of  our  legal  usages,  but  we  ought  to  re- 
quire evidence  of  some  positive  and  serious  public  inconven- 
ience before  we,  at  one  stroke,  annihilate  so  well-established 
and  venerable  a  practice  as  the  use  of  seals  in  the  authentication 
of  deeds.  The  object  in  requiring  seals,  as  I  humbly  presume, 
was  misapprehended  both  by  President  Pendleton  and  by  Liv- 
ingston, J.  It  was  not,  as  they  seem  to  suppose,  because  the 
seal  helped  to  designate  the  party  who  affixed  it  to  his  name. 
Jsta  ratio  nullius pretii,  says  Vinnius,  in  Inst.  2,  10,  5,  natn  et  alietio 
annulo  signare  licet.  Seals  were  never  introduced  or  tolerated  in 
any  code  of  law,  because  of  any  family  impression  or  image  or 
initials  which  they  might  contain.  One  person  might  always 
use  another's  seal,  both  in  the  English  and  in  the  Roman  law. 
The  policy  of  the  rule  consists  in  giving  ceremony  and  solem- 
nity to  the  execution  of  important  instruments,  by  means  of 
which  the  attention  of  the  parties  is  more  certainly  and  effec- 

flourish  of  the  pen,  which  may  be  taken  as  such,  we  are  justified  in  assum- 
ing that  the  mark  was  made  and  intended  for  a  seal,  and  that  the  writing 
is  in  this  respect  in  compHance  with  the  donor's  directions.  It  is  said  that 
the  same  or  a  similar  mark  is  found  in  other  parts  of  the  will,  used  for  punc- 
tuation, and  that  this  is  a  circumstance  evidencing  a  different  intention  of 
the  testatrix.  But  if  the  testatrix  did  use  a  mark  in  this  form  indifferently 
for  a  comma,^a  colon,  or  a  period,  what  good  reason  is  there  for  supposing 
she  did  not  also  use  it  for  a  seal?— Clark,  J.,  Hacker's  Appeal,  121  Pa.  St. 
192,  203-205.— Ed. 


SEC.  I.]  WARREN   V.   LYNCH.  695 

tually  fixed,  and  frauds  less  likely  to  be  practised  upon  the  un- 
wary. President  Pendleton,  in  the  case  of  Jones  and  Temple  v. 
Logwood,  I  Wash.  Rep.  42,  which  was  cited  upon  the  argu- 
ment, said  that  he  did  not  know  of  any  adjudged  case  that 
determines  that  a  seal  must  necessarily  be  something  impressed 
on  wax  ;  and  he  seemed  to  think  that  there  was  nothing  but 
Lord  Coke's  opinion  to  govern  the  question.  He  certainly 
could  not  have  examined  this  point  with  his  usual  diligence. 
The  ancient  authorities  are  explicit,  that  a  seal  does,  in  legal 
contemplation,  mean  an  impression  upon  wax.  "  It  is  not 
requisite,"  according  to  Perkins  (§  134),  "  that  there  be  for 
every  grantor  who  is  named  in  the  deed  a  several  piece  of  wax, 
for  one  piece  of  wax  may  serve  for  all  the  grantors  if  every  one 
put  his  seal  upon  the  same  piece  of  wax."  And  Brooke  (tit. 
Faits,  30  and  17)  uses  the  same  language.  In  Lightfoot  and 
Butler's  Case,  which  was  in  the  Exchequer,  29  Eliz.  (2  Leon,  21) 
the  Barons  were  equally  explicit  as  to  the  essence  of  a  seal, 
though  they  did  not  all  concur  upon  the  point,  as  stated  in 
Perkins.  One  of  them  said  that  twenty  men  may  seal  with  one 
seal  upon  one  piece  of  wax  only,  and  that  should  serve  for  them 
all,  if  they  all  laid  their  hands  upon  tlie  seal  ;  but  the  other  two 
Barons  held  that  though  they  might  all  seal  a  deed  with  one 
seal,  yet  it  must  be  upon  several  pieces  of  wax.'  Indeed  this 
point,  that  the  seal  was  an  impression  upon  wax,  seems  to  be 
necessarily  assumed  and  taken  for  granted  in  several  other  pas- 
sages which  might  be  cited  from  Perkins  and  Brooke,  and  also 
in  Selden's  Notes  to  Fortescue  (De  Laud.  p.  72)  ;  and  the 
nature  of  a  seal  is  no  more  a  matter  of  doubt  in  the  old  English 
law  than  it  is  that  a  deed  must  be  written  upon  paper  or  parch- 
ment, and  not  upon  wood  or  stone. '^  Nor  has  the  common  law 
ever  been  altered  in  Westminster  Hall  upon  this  subject,  for  in 
the  late  case  of  Adam  v.  Keer,  i  Bos.  &  Puller,  360,  it  was  made 
a  question  whether  a  bond  executed  in  Jamaica,  with  a  scrawl 
of  the  pen,  according  to  the  custom  of  that  island,  should  oper- 
ate as  such  in  England,  even  upon  the  strength  of  that  usage. 

'  It  is  true  that  one  piece  of  wax  may  serve  as  a  seal  for  several  persons, 
if  each  of  them  impresses  it  himself,  or  one  for  all,  by  proper  authority,  or 
in  the  presence  of  all,  as  was  held  in  Ball  v.  Dunsterville*  following  Lord 
Lovelace's  Case.f  but  then  it  must  appear  by  the  deed  and  profess  to  be  the 
seal  of  each,  whereas  here  the  seal  appears  by  the  deed,  and  professes  to 
be  the  seal  not  of  individuals,  but  of  a  corporation.  Lord  Denman,  C.J.. 
Cooch  V.  Goodman,  2  Q.  B.  5S0,  59S. — Ed. 

'  This  writing  must  be  in  paper  or  parchment,  for  if  an  agreement  be 
written  on  a  piece  of  wood,  linen,  the  bark  of  a  tree,  a  stone,  or  the  like, 
and  this  be  sealed  and  delivered,  this  is  no  good  deed.  Sheppard's  Touch- 
stone, 54.  — En. 

"  4  T.  R.  313.  t  v.''.  Jones,  268. 


696  PARKS  V.   HAZLERIGG  AND   OTHERS.  [CHAP.  II. 

The  civil  law  understood  the  distinction  and  solemnity  of 
seals  as  well  as  the  common  law  of  England.  Testaments  were 
required  not  only  to  be  subscribed,  but  to  be  sealed  by  the  wit- 
nesses. Subscriptiotie  testium,  et  ex  edicto  prcBtoris^  signacula  testa- 
meniis  imponerentur  (Inst.  2,  10,  3).  The  Romans  generally  used 
a  ring,  but  the  seal  was  valid  in  law,  if  made  with  one's  own  or 
another's  ring  ;  and,  according  to  Heineccius  [Elementa  Juris 
civilis  secundum  ord.,  Inst.  497),  with  any  other  instrument  which 
would  make  an  impression,  and  this,  he  says,  is  the  law  to  this 
day  throughout  Germany.  And  let  me  add  that  we  have  the 
highest  and  purest  classical  authority  for  Lord  Coke's  definition 
of  a  seal,  Quid  si  in  ejusniodi  cera  centum  sigilla  hoc  annulo  impres- 
sero  ?     (Cicero.  Academ.  Qusest,  Lucul.  4,  26.) 

Rule  refused. 


PARKS  V.  HAZLERIGG  and  Others. 
In  the  Supreme  Court  of  Indiana,  December  4,  1845. 

[Reported  in  7  Blackford  536.] 

Error  to  the  Hendricks  Circuit  Court. 

Sullivan,  J.  This  was  an  action  of  debt  on  an  appeal-bond. 
The  plaintiff  declared  against  Hazlerigg,  Kizer,  Russell,  and 
Dugan  ;  for  that  the  defendants,  on,  etc.,  at,  etc.,  by  their  cer- 
tain writing  obligatory  sealed  with  their  seals,  etc.,  acknowl- 
edged themselves  to  be  held  and  firmly  bound,  etc.  On  oyer  it 
appeared  that  the  above  defendants  were  named  in  the  bond  as 
obligors.  There  were  four  seals  affixed  to  the  bond,  but  it 
was  signed  only  by  Hazlerigg,  Russell,  and  Dugan.  Opposite 
to  the  fourth  seal  there  was  no  signature.  Demurrer  to  the 
declaration  and  judgment  for  the  defendants. 

This  case  presents  the  simple  question,  whether  it  is  neces- 
sary to  the  validity  of  a  bond,  which  has  been  sealed  by  the 
obligor,  that  it  be  signed  by  him  also. 

At  common  law,  signing  was  not  necessary  to  the  validity  of 
a  deed.  2  Blacks.  Comm.  305-306.  Cromwell  v.  Grunsden, 
2  Salk.  462.  To  this  point  it  is  not  necessary  to  multiply 
authorities.  It  has  been  intimated  that  since  the  Statute  of 
Frauds  and  Perjuries,  signing,  as  well  as  sealing,  is  necessary, 
2  Blacks.  Comm.,  supra;  but  the  better  opinion  seems  to  be, 
that  the  statute  has  made  no  alteration  in  this  respect,  since  it 
applies  only  to  mere  agreements  and  not  to  deeds,  i  Shepp. 
Touch.,    by    Preston,    56,    note    24  ;    Hurlstone   on    Bonds,   8. 


SEC.  I.]  PILLOW    V.   ROBERTS.  697 

"  Signing,"  saj's  Gresley,  in  his  Equity  Evidence,  p.  121,  in 
speaking  of  the  execution  of  a  deetl,  "  is  not  ordinarily  essen- 
tial, but  it  is  always  as  well  to  prove  it  as  a  regular  part  of  the 
transaction.  Besides,  it  assists  the  other  parts  of  the  proof  of 
execution,  for  the  circumstance  that  the  party  has  written  his 
name  opposite  to  the  seal,  on  an  instrument  bearing  on  its  face 
a  declaration  that  it  was  sealed  by  him,  '\'i,  prima  facie  evidence 
of  sealing  and  deliver)'  "  The  common  law,  therefore,  remains 
unchanged,  and  signing  was  not  essential  to  the  validity  of  the 
bond  declared  on  in  this  case.  If  the  plaintifif  can  prove  that 
Kizer,  with  the  other  defendants,  sealed  the  bond,  the  proof 
will  support  the  declaration,  which  is  in  the  usual  form.  The 
Court  erred  in  sustaining  the  demurrer. 

Per  Curiam.  The  judgment  is  reversed  with  costs.  Cause 
remanded,  etc. 

C.  C.  Nave  for  the  plaintiff. 


JEROME    B.    PILLOW,    Plaintiff    in    Error,  v.  TRUMAN 

ROBERTS. 

In  the    Supreme    Court    of    the  United  States,   December 

Term,  1851. 

\^Reported  ill  13  Howard  t^-jz.] 

This  case  was  brought  up,  by  writ  of  error,  from  the  Circuit 
Court  of  the  United  States  for  the  Eastern  District  of  Arkansas. 

The  circumstances  of  the  case,  and  the  points  of  law  upon 
which  it  came  up  to  this  Court,  are  fully  stated  in  its  opinion. 

Lawrence  and  Fike  for  the  plaintiff  in  error. 

Crittenden  for  the  defendant  in  error. 

Grier,  J.,  delivered  the  opinion  of  the  Court. 

Roberts,  the  defendant  in  error,  was  plaintiff  below,  in  an 
action  of  ejectment  for  160  acres  of  land.  Pillow,  the  defend- 
ant below,  pleaded  the  general  issue,  and  two  special  pleas. 
The  first,  setting  forth  a  sale  of  the  land  in  dispute,  for  taxes 
more  than  five  years  before  suit  brought.  The  second,  plead- 
ing the  Statute  of  Limitation  of  ten  years.  These  pleas  were 
overruled  on  special  demurrer,  as  informal  and  insufficient  ; 
and  the  judgment  of  the  Court  on  this  subject  is  here  alleged 
as  error.  But  as  the  same  matters  of  defence  were  afterward 
offered  to  be  laid  before  the  jury  on  the  trial  of  the  general 
issue   and   overruled   by   the   Court,  it   will   be   unnecessary  to 


698  PILLOW   V.    ROBERTS.  [CHAP.  II. 

further  notice  the  pleas  ;  as  the  defence  set  up  by  them,  if  valid 
and  legal,  should  have  been  received  and  submitted  to  the  jury 
on  the  trial.  In  the  action  of  ejectment  (with  the  exception, 
perhaps,  of  a  plea  to  the  jurisdiction)  any  and  every  defence  to 
the  plaintiff's  recovery  may  be  given  in  evidence  under  the  gen- 
eral issue.  And  as  the  decision  of  the  Court  on  the  bills  of  ex- 
ception will  reach  every  question  appertaining  to  the  merits  of 
the  case,  it  will  be  unnecessary  to  decide  whether  those  merits 
were  sufficiently  set  forth  in  the  special  pleas,  to  which  the  de- 
fendant was  not  bound  to  resort  for  the  purpose  of  having  the 
•  benefit  of  his  defence. 

On  the  trial  the  plaintiff  below  gave  in  evidence  a  patent  for 
the  land  in  dispute,  from  the  United  States  to  Zimri  V.  Henry, 
dated  May  7th,  1835  ;  and  then  offered  a  deed  from  said  Henry 
to  himself,  dated  November  loth,  1849.  This  deed  purported 
to  be  acknowledged  before  the  clerk  of  the  Circuit  Court  of 
Walworth  County,  in  the  State  of  Wisconsin,  and  was  objected 
to,  first,  because  there  was  no  proof  of  the  identity  of  the 
grantor  with  the  patentee  other  than  the  certificate  contained 
in  the  acknowledgment.  Secondly,  because  the  certificate  of 
acknowledgment  was  not  on  the  same  piece  of  paper  that  con- 
tained the  deed,  but  on  a  paper  attached  to  it  by  wafers.  And, 
thirdly,  because  the  seal  of  the  Circuit  Court  authenticating 
the  acknowledgment  was  an  impression  stamped  on  paper,  and 
not  "  on  wax,  wafer,  or  any  other  adhesive  or  tenacious  sub- 
stance." 

The  first  two  of  these  grounds  of  objection  have  not  been 
urged  in  this  Court,  and  very  properly  abandoned  as  untenable. 
The  third  has  been  insisted  on,  and  deserves  some  more  atten- 
tion.' Formerly  wax  was  the  most  convenient,  and  the  only 
material  used  to  receive  and  retain  the  impression  of  a  seal. 
Hence  it  was  said  :  "  Sigillum  est  cera  impressa  ;  quia  cera,  sine 
i?iJpressione,  non  est  sigillum.''''  But  this  is  not  an  allegation,  that 
an  impression  without  wax  is  not  "a  seal.  And  for  this  reason 
courts  have  held  that  an  impression  made  on  wafers  or  other 
adhesive  substance  capable  of  receiving  an  impression,  will 
come  within  the  definition  of  ce7-a  impressa.  If,  then,  wax  be 
construed  to  be  merely  a  general  term  including  within  it  any 
substance  capable  of  receiving  and  retaining  the  impression  of 
a  seal,  we  cannot  perceive  why  paper,  if  it  have  that  capacity, 
should  not  as  well  be  included  in  the  category.  The  simple 
and  powerful  machine,  now  used  to  impress  public  seals,  does 
not  require  any  soft  or  adhesive  substance  to  receive  or  retain 
their  impression.     The  impression  made  by  such  a  power  on 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


SEC.  I.]  riLLOW   1'.    ROBERTS.  699 

paper  is  as  well  defined,  as  durable,  and  less  likely  to  be  de- 
stroyed or  defaced  by  vermin,  accident,  or  intention,  than  that 
made  on  wax.  It  is  the  seal  which  authenticates,  and  not  the 
substance  on  which  it  is  impressed  ;  and  where  the  Court  can 
recognize  its  identity,  they  should  not  be  called  upon  to  analyze 
the  material  whicli  exhibits  it.  In  Arkansas,  the  presence  of 
wax  is  not  necessary  to  give  validity  to  a  seal  ;  and  the  fact 
that  the  public  officer  in  Wisconsin  had  not  thought  proper  to 
use  it,  was  sufficient  to  raise  the  presumption  that  such  was  the 
law  or  custom  in  Wisconsin  till  the  contrary  was  proved.  It  is 
time  that  such  objections  to  the  validity  of  seals  should  cease.' 
The  Court  did  not  err,  therefore,  in  overruling  the  objections 
to  the  deed  offered  b}'  the  plaintiff. 

The  judgment  of  tlie  Circuit  Court  is  therefore  reversed,  and 
a  veiiire  de  ?iovo  ordered.' 

'  The  release  purported  to  be  signed  by  the  plaintiff  and  various  other 
creditors  of  the  defendant  Taylor.  It  was  produced  before  the  Court  on 
the  trial,  and  the  Court  could  decide  from  inspection  whether  or  not  it  was 
under  seal.  No  oral  evidence  on  the  subject  is  contained  in  the  case.  The 
only  ground  upon  which  the  exception  to  this  finding  rests  is,  that  in  tl:e 
printed  copy  of  the  release  contained  in  the  case,  a  two-cent  internal  rev- 
enue stamp  appears  opposite  the  signature  of  each  creditor,  in  the  place 
appropriate  for  a  seal  There  is  nothing  in  the  case  to  show  that  these 
stamps  were  not  used  as  seals,  or  laid  over  some  substance  capable  of  re- 
ceiving an  impression,  and  employed  for  that  purpose.  In  the  absence  of 
any  such  evidence  the  finding  of  the  Court,  based  upon  an  inspection  of  the 
instrument,  cannot  be  disturbed. — Rapallo,  J.,  Van  Bokkelen  v.  Taylor, 
62  N.  Y.  105,  108.— Ed. 

The  certificate  of  the  protest  of  the  bill  of  exchange  by  the  notary  in  Nor- 
way was  properly  received  in  evidence.  It  is  in  due  form,  and  bears  what 
purports  to  be  the  seal  of  the  notary.  The  seal,  it  is  true,  is  impressed 
directly  on  the  paper  by  a  die  with  which  ink  was  used.  This  is  evident 
from  inspection  of  the  original,  which  has  been  transmitted  to  lis  from  the 
Court  below  for  our  personal  examination. 

The  use  of  wax,  or  some  other  adhesive  substance  upon  which  the  seal  of 
a  public  ofhcer  may  be  impressed,  has  long  since  ceased  to  be  regarded  as 
important.  It  is  enough,  in  the  absence  of  positive  law  prescribing  other- 
wise, that  the  impress  of  the  seal  is  made  upon  the  paper  itself  in  such  a 
manner  as  to  be  readily  identified  upon  inspection. 

The  language  used  in  Pillow  v.  Roberts,  reported  in  13  Howard,  as  to 
the  sufficiency  of  a  seal  of  a  court  impressed  upon  paper  instead  of  wax  or 
a  wafer,  is  applicable  here.  Said  the  Court,  speaking  by  Grier,  J.  :  "  For- 
merly, wax  was  the  most  convenient  and  the  only  material  used  to  receive 
and  retain  the  impression  of  a  seal.  Hence  it  was  said  :  Sigilluni  est  cera 
vnpressa  ;  q»ia  cera,  sine  impressioiie  non  est  sigilhnn.  But  this  is  not 
an  allegation  that  an  impression  without  wax  is  not  a  seal,  and  for  this 
reason  courts  have  held,  that  an  impression  made  on  wafers  or  otlier  ad- 
hesive substances  capable  of  receiving  an  impression,  will  come  within  the 
definition  of  '  cera  vnpressa.'  If,  then,  wax  be  construed  to  be  merely  a 
general  term  including  within  it  any  substance  capable  of  receiving  and 


700         JACKSONVILLE,  ETC.,  R.  &  N.  CO.  V.   HOOPER.      [CHAP.  II. 


JACKSONVILLE,    MAYPORT,    PABLO    RAILWAY    AND 
NAVIGATION    COMPANY  v.  HOOPER. 

In  the  Supreme  Court  of  the  United  States,  January  13, 

1896. 

[Reported  m  160  Untied  States  Reports  514.] 

In  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  Florida,  on  December  4th,  1889,  Mary  J.  Hooper, 
Henry  H.  Hooper,  her  husband,  and  William  F.  Porter,  for  the 
use  of  said  Mary  J.  Hooper,  citizens  of  the  State  of  Ohio, 
brought  an  action  against  the  Jacksonville,  Mayport,  Pablo 
Railway  and  Navigation  Company,  a  corporation  of  the  State 
of  Florida.  The  plaintiffs'  amended  declaration  set  up  causes 
of  action  arising  out  of  the  covenants  contained  in  a  certain  in- 
denture of  lease  between  the  parties.  This  lease,  dated  July 
loth,  1888,  purported  to  grant,  for  a  term  of  two  years,  certain 
lots  of  land  situated  at  a  place  called  "  Burnside,"  in  Duval 
County,  Fla.,  whereon  was  erected  a  hotel  known  as  the  "  San 
Diego  Hotel."  In  consideration  of  this  grant  the  railroad  com- 
pany agreed  to  pay  in  monthly  instalments  a  yearly  rent  of 
$Soo,  and  to  keep  the  premises  insured  in  the  sum  of  $6000. 

It  was  alleged  that  on  November  28th,  1889,  during  said 
term,  and  while  the  railway  company  was  in  possession,  the 
hotel  and  other  buildings  were  wholly  destroyed  by  fire  ;  that 
the  defendant  had  failed  and  neglected  to  have  the  same  in- 
sured, and  that  there  was  an  arrearage  of  rent  due  amounting 
to  the  sum  of  $106.67.  For  the  amount  of  the  loss  occasioned 
by  the  absence  of  insurance  and  for  the  back  rent  the  action 
was  brought. 

The  defendant  denied  that  the  railway  company  had  duly 
executed  the  instrument  sued  on  ;  denied  that  Alexander  Wal- 
lace, the  president  of  the  company,  and  who  had  executed  the 
lease  as  such  president,  had  any  authority  froni  the  company 
so  to  do.     The  defendant  also  alleged  that  such  a  lease,  even  if 

retaining  the  impression  of  a  seal,  we  cannot  perceive  why  paper,  if  it  have 
that  capacity,  should  not  as  well  be  included  in  the  category.  The  simple 
and  powerful  machine,  now  used  to  impress  public  seals,  does  not  require 
any  soft  or  adhesive  substance  to  receive  or  retain  their  impression.  The 
impression  made  by  such  a  power  on  paper  is  as  well  defined,  as  durable, 
and  less  likely  to  be  destroyed  or  defaced  by  vermin,  accident,  or  intention 
than  that  made  on.  wax.  It  is  the  seal  which  authenticates ,  and  not  the 
substance  on  which  it  is  impressed,  and  where  the  Court  can  recognize  its 
identity,  they  should  not  be  called  upon  to  analyze  the  material  which  ex- 
hibits it."-  Field,  J.,  Pierce  v.  Indseth,  106  U.  S.  546,  548. — Ed. 


SEC.  I.]  JACKSONVILLE,  ETC.,  R.  &  N,  CO.  V.  HOOFER.  70I 

formally  executed,  was  ultra  vires;  also  that  the  covenant  to 
insure  was  an  impossible  covenant,  as  shown  by  ineffectual 
efforts  to  secure  sucli  insurance. 

The  case  was  tried  in  April,  1S91,  and  resulted  in  a  verdict 
and  judgment  against  the  defendants  in  the  sum  of  $6798.70. 
On  errors  assigned  to  certain  rulings  of  the  Court  and  in  the 
charge  to  the  jury  the  case  was  brought  to  this  Court. 

y.  C.  Cooper  for  plaintiff  in  error. 

James  jR.  Challen  for  defendants  in  error. 

Shiras,  J.,  after  stating  the  case,  delivered  the  opinion  of  the 
Court. 

The  nineteen  assignments  of  error  may  be  classified  as  fol- 
lows :  Those  which  raise  questions  as  to  the  sufficiency  of  the 
proof  of  the  due  execution  by  the  defendant  of  the  contract 
sued  on  ;'  those  which  deny  the  competency  of  the  railroad 
company  to  enter  into  such  a  contract  ;  those  which  deal  with 
the  question  whether  the  defendant  was  relieved  from  liability 
on  its  covenant  to  insure  by  reason  of  alleged  impossibility  to 
comply  therewith  ;  finally,  those  alleging  error  in  the  admission 
of  evidence,  and  in  certain  portions  of  the  charge — particularly 
in  respect  to  the  ineasure  of  damages.  We  shall  discuss  these 
alleged  errors  in  the  order  thus  mentioned. 

The  declaration  was  in  covenant,  and  contained,  as  an  at- 
tached exhibit,  what  was  alleged  to  be  a  certified  copy  of  the 
contract  sued  on,  the  final  clause  whereof  was  as  follows  : 

"  In   witness  whereof   the    parties  hereto  have   hereunto  set 
their  hands  and  seals  this  the  day  and  year  above  written. 
"Jacksonville,  Mavport,  Pablo  Railway 
AND  Navigation  Company,  [Seal.] 

"  By  Alex.  Wallace,  President. 
"  Wm.  F.  Porter,  [Seal.] 

"  By  H.  H.  Hooper,  Jr.,  Att'y  in  fact. 
"  H.  H.  Hooper.  [Seal.] 

"  Mary  J.  Hooper.  [Seal.]" 

The  attesting  clause  was  as  follows  : 

"  Signed,  sealed,  and  delivered  in  the  presence  of  us. 

"  H.    H.    BURKMAN, 

"  H.  H.  BowNE, 

As  to  R.  R.  Co.,  H.  H.  Cooper, 

and  W.  F.  Porter. 
"John  Mulholland, 
"  Sam'l  E.  Duffy, 

As  to  Mary  J.  Hooper. ' ' 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


702         JACKSONVILLE,  ETC.,  R.  &  N.  CO.  V.  HOOPER,      [chap,  II 

The  defendant  demurred  on  several  grounds,  one  of  which 
was  as  follows  : 

"  That  attached  to  the  said  declaration  is  a  paper  purporting 
to  be  the  contract  which  is  the  basis  of  this  suit,  which  paper  is 
alleged  to  be  a  lease  between  the  defendant  company  and  the 
plaintiffs,  and  which  paper  is  referred  to  in  each  and  every 
count  of  said  declaration,  and  asked  and  prayed  and  made  a 
part  of  said  declaration  ;  that  each  and  every  count  of  same 
declares  in  covenant,  and  yet  the  same  contains  on  the  face 
thereof  and  the  face  of  the  paper  made  part  thereof  that  the 
said  cause  of  action  will  not  lie  because  the  said  paper  is  not 
under  seal  ;  that  there  is  no  seal  of  the  defendant  company  to 
said  paper." 

The  theory  of  this  demurrer  appears  to  be  that  there  should 
have  been  an  averment  on  the  face  of  the  instrument  that  the 
seal  attached,  on  behalf  the  company,  was  its  common  or  cor- 
porate seal.  However,  there  was  an  averment  that  the  parties 
had  set  their  hands  and  seals  to  the  paper,  and  the  attesting 
clause  alleged  that  the  railroad  company  had  signed,  sealed, 
and  delivered  in  the  presence  of  two  witnesses,  who  signed 
their  names  thereto.     On  demurrer  this  was  plainly  sufficient. 

But  it  is  urged  in  the  third  and  fourth  assignments  that  it 
was  error  to  permit  to  be  put  in  evidence  the  certified  copy  of 
the  lease,  as  likewise  the  duplicate  lease,  because  they  were 
not  shown  to  be  under  the  seal  of  the  company,  but  appeared 
to  be  under  the  private  seal  of  Alexander  Wallace,  the  presi- 
dent of  the  company.  But,  in  the  absence  of  evidence  to  the 
contrary,  the  scroll  or  rectangle  containing  the  word  "  seal" 
will  be  deemed  to  be  the  proper  and  common  seal  of  the  com- 
pany.    A  seal  is  not  necessarily  of  any  particular  form  or  figure. 

In  Pillow  V.  Roberts,  13  How.  472,  474,  this  Court  said, 
through  Grier,  J.,  when  discussing  an  objection  that  an  instru- 
ment read  was  improperly  admitted  in  evidence  because  the 
seal  of  the  Circuit  Court  authenticating  the  acknowledgment 
was  an  impression  stamped  on  paper  and  not  "  on  wax,  wafer, 
or  any  other  adhesive  or  tenacious  substance,"  said  :  "  It  is  the 
seal  which  authenticates,  and  not  the  substance  on  which  it  is 
impressed  ;  and  where  the  Court  can  recognize  its  identity, 
they  should  not  be  called  upon  to  analyze  the  material  which 
exhibits  it.  In  Arkansas  the  presence  of  wax  is  not  necessary 
to  give  validity  to  a  seal  ;  and  the  fact  that  the  public  officer 
in  Wisconsin  had  not  thought  proper  to  use  it,  was  sufficient  to 
raise  the  presumption  that  such  was  the  law  or  custom  in  Wis- 
consin, till  the  contrary  was  proved.  It  is  time  that  such  objec- 
tions to  the  validity  of  seals  should   cease.     The  Court  did  not 


SEC.  II.]  XEXOS    AND   ANO'lIIER    :-.    WICKIIAM.  703 

err  in  overruling  the  objections  to  the  deed  offered  by  the 
plaintiff."     Price  v.  Indseth,  106  U.  S.  546,  is  to  the  same  effect. 

Whether  an  instrument  is  under  seal  or  not  is  a  question  for 
the  Court  upon  inspection  ;  whether  a  mark  or  character  shall 
be  held  to  be  a  seal  depends  upon  the  intention  of  the  execu- 
tant, as  shown  by  the  paper.  Hacker's  Appeal,  121  Pa.  St.  192  ; 
Pillow  V.  Roberts,  ud.  supra. 

The  defendant  did  not  produce  the  original  in  order  that  it 
might  be  compared  in  the  particular  objected  to  with  the  copy 
and  duplicate  offered.  The  defendant's  attorney,  Buckman, 
was  called,  and  testified  that  he  was  one  of  the  attesting  wit- 
nesses to  the  instrument  offered,  and  that  he,  as  a  notary  pub- 
lic, took  the  acknowledgment  thereto  of  Alexander  Wallace, 
that  he  executed  the  same  for  and  in  behalf  of  the  company, 
and  that  the  said  lease  was  the  act  and  deed  of  the  defendant 
company  for  the  uses  and  purposes  therein  expressed. 

Whether,  therefore,  the  instrument  put  in  evidence  was  merely 
a  copy,  in  which  event  it  would  not  be  expected  that  a  wax  or 
stamped  seal  of  the  company  would  appear  upon  it,  but  merely 
a  scroll,  representing  the  original  seal,  or  whether  the  so-called 
copy  was  really  the  original  paper,  as  certified  by  one  of  de- 
fendant's witnesses,  would  not,  in  our  opinion,  be  material. 
The  presumption  would  be,  if  the  paper  were  a  copy,  that  the 
original  was  duly  sealed,  or,  if  it  were*  the  original,  that  the 
scroll  was  adopted  and  used  by  the  company  as  its  seal,  for  the 
purpose  of  executing  the  contract  in  question. 

These  views  cover  all  the  assignments  of  error  which  we  deem 
worthy  of  notice,  and  the  judgment  of  the  Court  below  is 
affirmed. 


Section  II. — Delivery. 

STEFANOS   XENOS  and  Another,  Appellants,  v. 
FRANCIS   D.  WICKHAM,  Respondent. 

In  the  House  of  Lords,  May  8  ;    July   16,  1866. 

\^Reported  in  Law  Reports,  2  House  of  Lords  Cases,  296.] 

This  was  an  appeal  against  a  decision  of  the  Court  of  Ex- 
chequer Chamber,*  which  {diss.  Blackburn  and  Mellor,  JJ.)  had 
affirmed  a  decision  of  the  Court  of  Common  Pleas,'  in  an  action 
between  these  parties  on  a  time  policy  on  a  ship. 

The  appellants  are  shipowners,  carrying  on  business   under 

'  13  C.  B.  (N.  S.)  381.  «  Ibid.  435. 


704  XENOS   AND   ANOTHER   V.    WICKHAM.         [CHAP.  II. 

the  name  of  the  Greek  and  Oriental  Steam  Navigation  Com- 
pany, and  as  such  were  the  owners  of  the  ship  Leonidas.  The 
respondent  is  the  chairman  and  representative  of  the  Victoria 
Fire  and  Marine  Insurance  Company.  The  declaration  alleged, 
in  the  usual  form,  that  the  plaintiffs  caused  their  vessel  to  be 
insured  by  this  company  for  the  space  of  twelve  months,  from 
April  25th,  1861,  to  April  24th,  1862,  on  a  policy  valued  at 
^1000,  upon  a  ship  valued  at  ;^i3,ooo,  and  the  loss  was  alleged 
to  have  occurred  by  perils  of  the  sea.  There  was  also  a  count 
in  trover  for  the  policy. 

The  defendant  pleaded  several  pleas,  some  of  which  alone 
are  material.  The  first  denied  the  insurance  as  alleged  ;  the 
fourth  stated  that  after  the  making  of  the  policy  the  same  re- 
mained, with  the  plaintiffs'  consent,  in  the  hands  of  the  defend- 
ant, and  while  it  so  remained,  and  before  the  loss,  the  plaintiffs 
requested  the  defendant,  for  the  purpose  of  putting  an  end  to 
the  policy,  to  cancel  the  same  and  make  a  return  to  the  plain- 
tiffs of  the  premium  ;  that,  in  compliance  with  such  request, 
and  before  the  loss,  the  defendant  did  cancel  the  policy,  and 
thereby  put  an  end  to  the  risk,  etc.  To  the  count  in  trover  the 
defendant  pleaded  not  guilty,  and  not  possessed. 

Issue  was  taken  on  all  these  pleas,  and  the  cause  was  tried 
before  Lord  Erie,  C.J.,  when  it  appeared  that  on  April  25th, 
1861,  the  plaintiffs  employed  Lascaridi,  an  insurance  broker,  to 
effect  for  them  a  policy  on  the  ship  Leonidas  for  ^,^2000  at 
^8  8^.  per  cent,  from  April  25th,  to  October  25th.  In  the  case 
of  private  underwriters  at  Lloyd's,  it  is  customary  to  have  only 
one  slip,  which  is  signed  by  the  different  underwriters  for  the 
amounts  for  which  they  are  willing  to  undertake  the  insurance. 
In  the  case  of  insurance  companies  a  separate  slip  is  prepared 
by  the  brokers  of  the  assured  for  each  company,  and  the  policy 
is  afterward  prepared  and  filled  up  from  the  slip  by  the  officers 
of  the  company,  and  is  kept  by  the  company  until  sent  for  by 
the  assured  or  his  broker. 

In  accordance  with  the  usual  practice  Lascaridi  prepared  for 
the  respondent's  company  a  slip  embodying  the  terms  of  the 
proposed  insurance,  and  got  it  initialed  by  E.  J.  Sprange,  a 
clerk  of  the  company,  for  the  sum  of  jQiooo.  This  was  left  at 
the  office  of  the  company  in  order  that  the  policy  might  be 
made  out.  Before  the  policy  was  made  out,  the  plaintiffs  sent 
to  Lascaridi  a  letter,  dated  April  29th,  1861,  desiring  him  to 
"  cancel  Leonidas  insurance,  and  insure  the  same  for  all  the 
year  and  for  all  seas  at  ;^io  10s.  per  cent."  On  April  30th 
Lascaridi  called  at  the  respondent's  office,  and  stated  that  he 
did  not  wish  the  policy  already  mentioned   to  proceed,  but  de- 


SEC.  II.]  XENOS   AND   ANOTHER   V.    WICKIIAM. 


/U5 


sired  to  effect  another.  The  slip  for  the  insurance  for  ^^2000 
for  six  months  was  then  destroyed,  and  another  slip  was  pre- 
pared by  him,  and  initialed  by  the  respondent's  clerk,  "  E.  J,  S.," 
on  the  Leonidas  for  ^1000  for  twelve  months,  from  April  25th, 
1861,  on  "hull,  stores,  and  machinery,  valued  at  ;!^i3,ooo." 
On  May  ist  Lascaridi  sent  to  the  plaintiffs  an  account  debiting 
them  with  the  sum  of  jQ2,2>^,  as  payable  by  them  in  respect  of 
insurances  on  the  Leonidas,  and  drew  on  them,  as  of  that  date, 
for  that  sum  at  three  months.  They  accepted  the  bill,  and  when 
they  did  so  Lascaridi  told  them  that  the  policy  would  be  ready 
in  a  day  or  two.  This  bill  was  paid  at  n-iaturity.  In  the  course 
of  a  few  days  afterward  a  policy  in  the  usual  form  of  the  com- 
pany was  filled  up  from  the  slip,  and  was  dated  May  ist,  1861. 

The  custom,  as  between  insurance  companies  and  insurance 
brokers,  is  for  the  companies  to  give  credit  to  the  brokers  for 
the  premiums,  debiting  them  in  account  with  the  amount  of 
such  premiums,  and  when  insurances  are  effected  (as  this  was) 
for  cash,  or  on  cash  account,  all  premiums  for  insurances 
effected  during  each  month  are  payable  on  the  8th  of  the  suc- 
ceeding month.  Just  before  the  expiration  of  this  credit  a  debit 
note  is  sent  to  the  broker,  with  a  statement  of  the  amount  of 
the  premiums  due,  less  a  discount  and  a  brokerage  at  15  per 
•cent.  On  June  8th  a  debit  note  was  sent  from  the  respondent's 
office  to  that  of  Lascaridi.  On  its  being  presented,  Lascaridi's 
clerk  said  that  no  premium  was  due,  and,  upon  a  second  mes- 
senger being  sent  with  the  policy,  which  was  expressed  to  be 
duly  "signed,  sealed,  and  delivered,"  and  the  debit  note,  the 
clerk  repeated  the  statement,  and  said  that  the  policy  ought  not 
to  have  gone  forward.  In  the  course  of  the  day  one  of  the 
clerks  of  Lascaridi  called  at  the  office  of  the  company,  and  said 
that  the  policy  had  been  put  forward  in  error,  and  requested 
that  it  should  be  cancelled.  A  memorandum  of  cancellation 
was  thereupon  endorsed  on  the  policy  in  these  terms  :  "  Settled 
a  return  of  the  whole  premium  on  the  within  policy,  and  can- 
celled this  insurance,  no  risk  attaching  thereto."  This  memo- 
randum was  signed  by  two  directors,  witnessed,  and  registered 
in  the  regular  way.  The  debit  against  Lascaridi  for  the  pre- 
mium was  cancelled,  but  he  was  charged  with  the  stamp,  and 
the  policy  was  handed  to  his  clerk,  with  the  memorandum  of 
cancellation  thereon,  that  he  might,  if  he  could,  obtain  from 
the  stamp  office  a  return  of  the  stamp  duty.  On  the  morning 
of  September  2d,  1861,  Lascaridi's  clerk  called  at  the  office  of 
the  company  with  the  policy,  said  that  the  cancellation  had 
been  made  by  mistake,  and  wished  the  policy  to  be  reinstated. 
He  was  informed  that  if  the  ship  was  safe,  and  not  in  the  Baltic, 


706  XENOS   AND   ANOTHER   V.   WICKHAM.         [cHAP.  II. 

there  would  be  no  objection,  and  he  was  requested  to  call  again 
for  an  answer.  At  twenty  minutes  past  eight  o'clock  on  the 
morning  of  that  day  intelligence,  by  telegram,  had  been  re- 
ceived at  Lloyd's,  stating  that  the  Leonidas  was  stranded  on 
the  Nervo,  but  this  intelligence  was  not  known  to  the  respond- 
ent till  3  o'clock  in  the  afternoon  of  that  day.  The  reinstate- 
ment of  the  policy  was  then  refused.  It  was  admitted  that  the 
appellants  had  not,  in  fact,  authorized  the  cancellation  of  the 
policy,  nor  did  they  ever  receive  back  from  Lascaridi  any  part 
of  the  premium  or  any  credit  for  the  same. 

The  Lord  Chief  Justice,  on  these  facts,  directed  a  verdict  for 
the  defendant,  but  reserved  leave  to  the  plaintiffs  to  move  to 
enter  a  verdict  for  them  if  the  Court  should  be  of  opinion  that 
the  policy  was  binding  on  the  company,  and  had  been  cancelled 
without  authority.  A  rule  to  that  effect  having  been  obtained, 
it  was,  after  argument,  discharged,  and  this  decision  was  con- 
firmed on  appeal  to  the  Exchequer  Chamber.  The  present 
appeal  was  then  brought. 

The  judges  were  summoned,  and  Lord  Pollock,  C.B.,  Willes, 
Blackburn,  Mellor,'  JJ.,  Pigott,  B.,  and  Smith,'  J.,  attended. 

George  Jlonyman,  Q.C.,  and  Watkin  ^////a»ij  for  the  appellants. 

Bovill,  Q.  C,  and  Archibald  iox  the  defendant. 

The  following  question  was  put  to  the  judges  : 

"  Whether,  on  the  facts  stated  in  the  special  case,  the  Vic- 
toria Fire  and  Marine  Insurance  Company  was,  when  the  ship 
Leonidas  was  lost,  liable  as  insurer  to  the  plaintiffs  on  the  pol- 
icy, or  alleged  policy,  in  the  pleadings  mentioned  ?  It  is  to  be 
assumed  that  the  ship  Leonidas  was  totally  lost  on  Septem- 
ber ist,  1861." 

PiGGOT,  B.  My  Lords,  in  answer  to  your  Lordships'  ques- 
tion— viz.,  "  Whether,  on  the  facts  stated  in  the  special  case, 
the  Victoria  Fire  and  Marine  Insurance  Company  was,  when 
the  ship  Leonidas  was  lost,  on  September  ist,  1861,  liable  as 
insurer  to  the  plaintiffs  on  the  alleged  policy  in  the  pleadings 
mentioned,"  I  answer  that,  in  my  opinion,  the  company  was 
so  liable. 

The  facts  are  very  fully  and  accurately  set  forth  in  the 
judgment  delivered  by  Blackburn,  J.,  in  which  judgment  I 
entirely  agree.  It  is  unnecessary  for  me  to  do  more  than 
refer  to  the  more  prominent  ones  in  stating  the  grounds  of  my 
opinion.^ 

It  is  on  the  circumstance  of  the  policy  remaining  in  the  hands 
of  the  defendant,  as  above  stated,  that  the  question  depends, 

'  The  opinions  of  Mellor  and  Smith,  JJ.,  have  been  omitted. — Ed. 
'  A  portion  of  the  opinion  has  been  omitted. — Ed. 


I 


SEC.  II.]  XEXOS    AND    ANOTHER    T'.    WlCKllA.M.  707 

whether  the  transaction  constituted  a  complete  contract  in  law 
and  fact  or  not.     1  am  of  opinion  that  it  was  complete. 

What  inference  might  have  been  drawn  from  the  fact  of  its 
so  remaining  if  there  were  no  explanation  about  it,  it  is  unnec- 
essary to  consider  ;  for  we  have  the  reason  given  ;  and  that 
reason  is,  not  that  it  awaited  anything  to  be  done  upon  it  by 
the  defendant,  or  to  be  assented  to  by  the  plaintiffs,  but  that  it 
was  there  only  till  sent  for  by  the  assured  or  his  broker,  or  in 
other  words,  that  it  remained  there  according  to  the  trade 
usage  or  by  tacit  understanding.  This  reason  necessarily  im- 
plies that  in  all  other  respects  it  was  a  completed  transaction. 
But  farther,  it  is  plain  that  the  formal  assent  of  the  plaintiffs 
was  not  wanting  to  any  of  the  terms  of  the  policy,  for  that  was 
evidently  intended  to  be,  and  accordingly  was,  made  out  in  the 
defendant's  usual  form,  filled  up  with  the  particulars  from  the 
slip.  But  farther,  the  defendant  acted  upon  the  policy  as  a 
perfected  transaction,  when,  on  June  8th,  he  demanded  pay- 1  >/ -^ 
ment  of  the  premium  for  which  he  had  given  credit  to  the ' 
broker.  In  the  face  of  this  demand,  I  confess  it  seems  startling 
that  the  defendant  can  be  heard  to  say  that  there  was  no  com- 
plete contract  subsisting  at  that  period.  It  was  in  form  com- 
plete, and  was  shown,  by  the  conduct  of  all  the  parties  to  it,  to 
be  believed  and  intended  by  them  all  (apart  from  Lascaridi's 
fraud)  to  be  also  completely  in  operation. 

It  seems,  therefore,  to  be  reduced  to  this — viz..  Was  it  essen- 
tial that  the  deed  should  be  given  out  of  the  defendant's  pos- 
session in  order  to  its  perfect  delivery  as  an  operative  instru- 
ment ?     I  know  of  no  such  necessity  in  law  or  good  sense. 

Sheppard,  in  his  Touchstone,  writing  of  the  requisites  of  a 
good  deed,  treats,  fifthly,  of  delivery  as  a  matter  of  fact  to  be 
tried  by  jurors,'  and  by  the  whole  context  shows  that  it  is  a 
question  of  intention.  He  afterward^  says  that  "  Delivery  is 
either  actual — i.e.,  by  doing  something  and  saying  nothing — or 
else  verbal — i.e.,  by  saying  something  and  doing  nothing,  or  it 
may  be  by  both  ;  and  either  of  these  may  make  a  good  delivery 
and  a  perfect  deed." 

Doe  d.  Garnons  v.  Knight^  is  an  authority  most  satisfactory 
on  this  subject,  and  it  is  only  necessary  to  quote  one  passage 
from  the  judgment  of  the  Court  as  delivered  by  Bayley,  J. 
He  says  :  "  Where  an  instrument  is  formally  sealed  and  deliv- 
ered, and  there  is  nothing  to  qualify  the  delivery  but  the  keep- 
ing the  deed  in  the  hands  of  the  executing  party,  nothing  to 
show  that  he  did  not  intend  it  to  operate  immediately,  it  is  a 
valid  and  effectual  deed,  and  the  delivery  to  the  party  who  is 
'  Vol.  I.,  ch.  4.  p.  54.  ^Uui.-p.si.  35B.  &C.  692. 


708  XENOS   AND   ANOTHER   V.    WICKHAM.         [CHAP.  II. 

to  take  by  it,  or  to  any  person  for  his  use,  is  not  essential." 
This  passage  seems  to  be  exactly  applicable  to  the  facts  of  the 
present  case,  with  this  addition,  that  there  is  here  not  only 
nothing  to  qualify  the  delivery,  but,  as  above  suggested,  much 
to  show  that  the  defendant  did  intend  it  to  be  unqualified,  and 
a  deed  in  full  operation. 

I  therefore  answer  your  Lordships'  question  in  favor  of  the 
plaintiffs,  and  in  the  affirmative. 

Blackburn,  J.  I  answer  your  Lordships'  question  in  the 
affirmative.  Two  questions  are  involved  in  your  Lordships' 
question.  First,  whether  the  policy  before  June  8th  was  so 
executed  as  to  bind  the  defendant's  company  to  the  plaintiffs  ; 
second,  whether  the  transaction  between  the  defendant's  com- 
pany and  Lascaridi  (the  plaintiffs'  broker)  operated  so  as  to  re- 
lease the  defendant  from  the  obligation  he  had  contracted  to 
the  plaintiffs,  supposing  the  policy  to  have  been  so  executed. 

I  have  already,  in  the  judgment  I  delivered  in  the  Court  be- 
low, expressed  the  reasons  for  my  opinion  at  length.*  And  as 
I  have  not  been  induced,  by  anything  I  have  heard  at  your 
Lordships'  bar,  to  alter  the  opinion  I  then  expressed,  I  think  it 
better  to  refer  your  Lordships  to  that  printed  opinion  than  to 
repeat  the  opinion  I  there  gave. 

I  have  had  an  opportunity  of  perusing  the  opinions  of  my 
Brothers  Willes  and  Smith,  and,  if  I  understand  them  rightly, 
they  agree  with  me  in  thinking  that  if  the  policy  was  binding 
before  June  8th,  what  occurred  subsequently  would  not  dis- 
charge the  company.  I  shall,  therefore,  say  nothing  more  on 
that  branch  of  the  question. 

As  to  the  other  branch,  I  should  wish  to  call  your  Lordships' 
attention  to  what   I   think  are  the  real  points  in  controversy. 

They  are,  I  think,  two  ;  one  of  fact,  the  other  of  law. 
I  The  question  of  fact  is,  I  think,  this  :  Was  the  policy  really, 
in  fact,  intended  by  both  sides  to  be  finally  executed  and  bind- 
'  ing  from  the  time  when  the  directors  of  the  defendant's  com- 
pany affixed  their  seals  to  it,  and  left  it  in  their  office  ;  or  was 
it,  in  fact,  intended  that  the  assured  or  their  brokers  should 
exercise  a  subsequent  discretion  as  to  whether  they  would 
accept  it  or  not. 

If  I  thought  that  the  parties  did  not,  in  fact,  intend  it  to  be 
then  finally  binding,  I  do  not  think  there  would  be  any  magic 
in  the  law  to  make  it  binding  contrary  to  their  intention  ;  but 
I  submit  to  your  Lordships  that  the  statements  in  the  case  as 
to  what  is  stated  to  be  "  always"  the  practice,  and  the  state- 
ments there  as  to  what  was  done  in  this  particular  case,  show 
'  13  C.  B.    (N.  S.)45i. 


I 


SEC.  II.]  XENOS   AND   ANOTHER   T'.    WICKIIAM.  709 

that  the  intention  of  botli  parties  was,  that  tlie  policy,  when 
drawn  up  by  the  company  in  conformity  with  the  instructions 
in  the  advice  slip  sent  in  b}'  the  broker,  should  be  finally  bind- 
ing as  soon  as  executed  b}'  the  officers  of  the  company.  It  was 
not  intended  by  either  side  that  anything  more  should  be  done, 
but  that  the  policy  from  that  time  should  be  binding,  and 
should  lie  in  the  company's  office  as  the  property  of  the  assured 
till  sent  for  by  them,  and  then  be  handed  over  to  their  mes- 
senger. 

It  seems  that  some  of  the  judges  take  a  different  view  of  the 
fact,  and  think  it  really  was  intended  that  the  policy  should 
not  be  finally  binding  till  something  more  was  done  by  the 
assured.  Your  Lordships  will  decide  which  is  the  true  view  of 
the  facts. 

Then,  assuming  that  the  intention  really  was  that  the  policy 
should  be  binding  as  soon  as  executed,  and  should  be  kept  by 
the  company  as  a  baillee  for  the  assured,  the  question  of  law 
arises,  whether  the  policy  could  in  law  be  operative  until  the 
company  parted  with  the  physical  possession  of  the  deed, 

I  can,  on  this  part  of  the  case,  do  little  more  than  state  to 
your  Lordships  my  opinion,  that  no  particular  technical  form 
of  words  or  acts  is  necessary  to  render  an  instrument  the  deed 
of  the  party  sealing  it.  The  mere  affixing  the  seal  does  not 
render  it  a  deed  ;  but  as  soon  as  there  are  acts  or  words  suffi- 
cient to  show  that  it  is  intended  by  the  party  to  be  executed  as 
his  deed  presently  binding  on  him,  it  is  sufficient.  The  most 
apt  and  expressive  mode  of  indicating  such  an  intention  is  to 
hand  it  over,  saying  :  "  I  deliver  this  as  my  deed  ;"  but  any 
other  words  or  acts  that  sufficiently  show  that  it  was  intended 
to  be  finally  executed  will  do  as  well.  And  it  is  clear  on  the 
authorities,  as  well  as  the  reason  of  the  thing,  that  the  deed  is 
binding  on  the  obligor  before  it  comes  into  the  custody  of  the 
obligee,  nay,  before  he  even  knows  of  it  ;  though,  of  course,  if 
he  has  not  previously  assented  to  the  making  of  the  deed  the 
obligee  may  refuse  it.  In  Butler  and  Baker's  Case,'  it  is  said  : 
"  If  A.  make  an  obligation  to  B.,  and  deliver  it  to  C.  to  the  use 
of  B.,  this  is  the  deed  of  A.  presently  ;  but  if  C.  offers  it  to  B., 
there  B.  may  refuse  it  in  pais,  and  thereby  the  obligation  will 
lose  its  force."  I  cannot  perceive  how  it  can  be  said  that  the 
delivery  of  the  policy  to  the  clerks  of  the  defendant,  to  keep 
till  the  assured  sent  for  it,  and  then  to  hand  it  to  their  messen- 
ger, was  not  a  delivery  to  the  defendant  to  the  use  of  the  as- 
sured. There  is  neither  authority  nor  principle  for  qualifying 
the  statement  in  Butler  and  Baker's  Case,  by  saying  that   C. 

'  3  Co.  Rep   26. 


yiO  XENOS   A\D   ANOTHER   V.    WICKHAM.  [CHAP.  II. 

must  not  be  a  servant  of  A.,  though,  of  course,  that  is  very 
material  in  determining  the  question  whether  it  was  "  delivered 
to  C.  to  B.'s  use,"  which  I  consider  it  to  be,  in  other  words, 
whether  it  was  shown  that  it  was  intended  to  be  finally  executed 
as  binding  the  obligor  at  once,  and  to  be  thenceforth  the  prop- 
erty of  B.  In  the  present  case,  the  assured  could  not  have  re- 
fused the  deed  in  pais,  for  it  was  drawn  up  in  strict  pursuance 
of  the  authority  given  by  them  in  the  slip  set  out  in  the  case  ; 
and  I  think  a  prior  authority  is  at  least  as  good  as  a  subsequent 
assent.  That  question,  however,  does  not  arise,  as  they  did 
not  refuse  it  in  pais. 

No  authority,  I  think,  has  been  cited  which  supports  the 
position  that  there  is  a  technical  necessity  for  some  one  who  is 
agent  of  the  assured  taking  corporal  possession  of  a  policy 
under  seal  before  it  can  be  binding,  though  intended  by  both 
parties  to  be  so.  I  think  it  would  be  very  inconvenient,  and 
would  work  great  injustice,  if  such  were  the  law,  I  must  leave 
it  to  your  Lordships  to  determine  whether  it  is  so  or  not. 

WiLLES,  J.  My  Lords,  I  answer  the  question  in  the  negative, 
that  upon  the  facts  stated  in  the  special  case,  the  respondent 
(who  represents  the  Victoria  Fire  and  Marine  Insurance  Com- 
pany) was  not,  when  the  ship  Leonidas  was  lost,  liable  as  in- 
surer to  the  plaintiffs  on  the  policy,  or  alleged  policy,  in  the 
pleadings  mentioned. 

Assuming,  as  upon  the  statement  it  must  be  assumed,  that 
the  broker  had  no  authority  to  revoke  this  policy,  if  once  com- 
pleted, so  as  to  be  the  contract  of  and  binding  upon  both  par- 
ties, the  question  is  whether  it  ever  was  so  completed. 

In  dealing  with  this  question  as  a  practical  one,  it  must  be 
borne  in  mind  that  albeit  consent,  not  corporal  possession, 
makes  the  contract,  yet  the  plain  duty  of  the  broker  is  not 
merely  to  bespeak,  but  to  procure  the  policy,  and  to  procure  it 
upon  his  own  credit.  A  loose  way  of  business  upon  trust  can- 
not abrogate  any  part  of  that  duty,  or  make  up  for  the  conse- 
quence of  neglecting  it  ;  and,  indeed,  taking  the  practice  alleged 
to  prevail  as  a  whole,  it  is  for  the  most  part — viz.,  as  to  the 
insurances  effected  at  Lloyd's,  consistent  with  the  duty  of  the 
broker  to  effect  the  policy  in  such  a  manner  that  his  employer, 
or  he,  on  behalf  of  his  employer,  should  have  the  policy. 

In  the  case  of  insurances  at  Lloyd's,  no  difficulty  can  arise, 
for  the  broker  sends  round  the  policy  and  procures  the  signa- 
tures. When  the  policy  is  effected  with  a  company,  therefore, 
if  analogy  is  to  prevail,  the  broker  ought  to  call  for  the  policy. 
A  careless  practice,  not  stated  to  have  grown  into  a  known 
usage  of  trade,  may  exist  of  not  asking  for   the  policy,  but  if 


SFX.  II.]  XENOS    AND    ANOTHER  f.    WICKHAM.  71I 

this  be  so,  it  is  pure  negligence.  Nor  can  it  be  doubted  that 
the  employer  in  such  a  case,  equally  as  in  that  of  insurance  at 
Lloyd's,  is  entitled  to  have  the  policy  in  his  broker's  hands. 
Nor  could  the  broker,  in  case  of  any  damage  arising,  for  want 
of  a  policy,  or  of  a  proper  policy,  through  his  default  in  not 
asking  for  it,  or  looking  to  see  that  it  was  in  order,  resist  an 
action  such  as  was  brought  by  the  employers  in  Turpin  v. 
Bilton.' 

The  statutes  requiring  contracts  of  marine  insurance  to  be  in 
writing,  and  stamped  (35  Geo.  3,  ch.  6^,  §  11  ;  54  Geo.  3, 
ch.  144,  §§  3,  4,  5),  annul  contracts  not  so  framed,  conse- 
quently, a  marine  policy,  or  contract  for  a  marine  policy,  to  be 
valid,  must  be  in  writing,  which,  by  the  assent  of  both  parties, 
shall  represent  the  contract  between  them.  But  for  the  decided 
cases,  it  might  have  been  supposed  that  upon  the  slip  being 
completed,  there  was  a  contract  on  the  part  of  the  assurers  to 
prepare  and  hand  over  a  policy  according  to  the  slip,  and  that 
although,  because  of  the  statutes,  no  action  could  be  maintained 
as  upon  a  policy  of  insurance,  yet  an  action  might  be  main- 
tained for  not  preparing  a  policy.  And  causes  have  even  been 
tried,  without  objection,  upon  the  notion  that  the  insurance  is 
complete  from  the  date  of  the  slip. 

But  the  law,  as  settled  by  the  decisions  upon  the  construction 
of  the  statutes  referred  to,  is,  that  as  there  can  be  no  valid  in- 
surance, or  contract  for  an  insurance,  unless  b}'-  writing  with  the 
statutory  requisites,  the  slip  by  itself  has  no  binding  force. 
Thus,  it  has  been  held,  that,  notwithstanding  the  slip,  the  pro- 
posed assured,  upon  the  one  hand,  can  insist  upon  being  off, 
and  can  retract  his  order,  and  refuse  to  accept  the  policy.  War- 
wick r.  Slade,^  where  the  emplo3'er  retracted  the  broker's 
authority  after  the  slip  was  signed,  though  before  the  policy 
was  completed  ;  and,  on  the  other  hand,  that  the  slip  imposes 
no  liability  upon  the  proposed  insurer,  and  there  is  no  remedy 
against  him  until  the  policy  is  complete.  Parry  v.  The  Great 
Ship  Company.^ 

It  follows  that  the  slip,  though  complete,  is  no  contract,  nor 
even  part  of  a  contract  of  insurance,  but  a  mere  proposal  that 
a  policy  of  insurance  shall  be  entered  into  lu  futuro^  and,  in 
case  of  insurance  with  a  company,  a  request  that  the  policy 
shall  be  prepared  at  the  office.  Does  it  follow,  that  when  a 
policy  is  prepared  in  alleged  compliance  with  the  request,  it 
shall  be,  without  more,  the  contract  of  both  the  parties  ?  That 
cannot  be  the  rule,  because  it  must  be  open  to  the  customer, 
or  to  his  broker,  when  the  negotiation  takes  place  through  a 
'  5  Man.  &  G.  455.  «  3  Camp.  127.  «  4  B.  &  S.  556. 


712  XENOS   AND   ANOTHER  V.    WICKHAM.  [CHAP.  II. 

broker,  to  object  (and  especially  in  the  case  of  company  poli- 
cies, which  do  not  always  follow  Lloyd's  form),  that  the  policy 
is  wrong.  In  case  of  war,  or  a  dangerous  voyage,  or,  indeed, 
any  case  with  a  special  provision,  disputes  may  easily  arise. 
In  this  very  case  a  question  might  have  been  raised  upon  the 
omission  of  the  running-down  clause,  which  has  been  so  com- 
monly added  in  the  margin  since  Devaux  v.  Salvador  ;'  and  see 
also  Taylor  v.  Dewar.^ 

It  is  thus  obvious  that  there  must  be  power  to  object  or  re- 
fuse assent  to  the  policy  when  prepared  by  the  company  ;  and, 
inasmuch  as  such  objection  or  refusal  touches  the  question, 
policy  or  no  policy,  it  lies  within  the  scope  of  the  broker's 
authority.  He  may  give  a  bad  reason  for  his  refusal,  as  the 
broker  in  the  principal  case  is  said  to  have  done  ;  but  the  bad- 
ness of  the  reason  assigned  cannot  take  away  from  the  effect 
of  the  act  done,  which,  according  to  the  maxim,  must  depend 
upon  the  power  he  had  to  do  it,  not  upon  the  soundness  of  the 
reason  he  gave  for  doing  it. 

By  way  of  removing  this  difficulty  various  suggestions  have 
been  made  in  argument.  One  was  that  the  case  is  analogous 
to  a  conveyance  of  property,  where  assent  is  presumed  until 
disclaimer.  I  am  not  aware,  however,  that  this  doctrine  of 
presumed  assent  has  ever  been  applied  to  the  case  of  a  mercan- 
tile contract,  with  something  to  be  done  on  both  sides,  such  as 
to  insure  upon  terms  which  may  or  may  not  be  correctly  ex- 
pressed, in  consideration  of  being  paid,  or  allowed  to  debit  in 
account,  a  premium  which  may  or  may  not  be  commensurate  to 
the  risk. 

In  the  case  of  a  simple  benefit  conferred,  to  be  taken  as  it  is, 
or  not  at  all,  like  a  bond  or  a  release,  there  might  be  room  for 
such  a  presumption,  though  it  is  difficult  even  there  to  recog- 
nize a  complete  contract  before  assent.  But  the  presumption 
is  out  of  place  as  applied  to  a  contract  with  mutual  obligations, 
which  must  be  matter  of  bargain,  and  must  be  incomplete  so 
long  as  either  mind  may  dissent. 

Indeed,  the  suggested  analogy  to  conveyances  of  visible  prop- 
erty, if  it  held  good,  would  not  help  the  plaintiffs,  but  rather 
tend  to  illustrate  the  necessity  of  subsequent  assent.  Thus, 
if  B.  order  of  a  watchmaker  a  watch  of  the  same  make  and 
materials  as  that  of  A.,  with  B.'s  name  upon  it,  and  the  watch- 
maker makes  it  accordingly,  intending  it  for  B.,  and  puts  B.'s 
name  upon  it,  so  that  it  is  as  much  as  it  can  be  the  very  watch 
bargained  for,  yet,  without  a  new  assent  on  B.'s  part,  it  does 
not  vest  in  him  ;  the  watchmaker  cannot  make  B.  take  to  it, 
'  4  Ad.  &  E.  520.  2  5  B.  &  S.  58. 


SEC.  II.]  XENOS   AND   ANOTHER   V.    WICKHAM.  713 

nor  B.  compel  its  delivery.     See  the  argument  in   Atkinson  v. 
Bell.' 

And,  in  like  manner,  as  to  a  contract  to  be  prepared  in/uiuro, 
if  goods  are  bought,  to  be  paid  for  by  the  buyer's  promissory 
note  or  check,  payable  to  the  seller  or  order,  and  the  goods  are 
delivered  and  accepted,  and  the  buyer  makes  the  note  or  check, 
and  leaves  it  with  his  servant,  to  be  handed  to  the  seller  when 
he  calls  for  it,  that  transaction  is  not  enough  to  vest  the  note 
or  check  in  the  seller,  and  the  buyer  may,  without  more,  retake 
the  note  or  check  from  his  servant  and  put  it  into  the  fire. 

It  is  clear,  therefore,  that  the  doctrine  of  presumed  assent  to 
a  conveyance  will  not  help,  and  that  the  mere  previous  request 
(even  though  binding  as  part  of  a  contract),  that  a  contract, 
which,  to  be  valid,  must  be  in  writing,  shall  be  prepared  by  one 
of  the  parties,  proposing  to  contract,  for  the  other,  has  not  the 
effect  of  vesting  a  right  in  any  contract  in  writing  if  and  when 
so  prepared,  and  much  less  can  a  previous  colloquy,  not  bind- 
ing as  part  of  a  contract,  have  that  effect. 

As  another  way  of  getting  out  of  the  difficulty,  it  was  sug- 
gested to  assume  that  the  insurance  company,  or  servants  of 
the  company,  were  made  agents  of  the  employers  of  the  broker, 
for  the  purpose  of  assenting  to  the  policy  on  their  part.  That 
would,  however,  be  simply  assuming  the  thing  that  is  not,  for 
the  sake  of  shutting  out  an  unpleasant  consequence  of  the  thing 
that  is.  To  hold  an  auctioneer,  or  common  broker,  or  other 
independent  go-between,  to  be  authorized  to  complete  the  con- 
tract for  both  buyer  and  seller,  is  but  a  necessary  conclusion  of 
fact  from  his  being  their  common  agent.  To  reason  thus  as  to 
a  clerk  or  servant  of  one  of  the  parties,  employed  by  him  in  a 
dependent  capacity  to  attend  to  his  business,  involves  a  contra- 
diction and  has  no  foundation  of  fact. 

These  sources  of  light  thus  failing,  let  the  transaction  itself 
be  examined  with  attention.  It  has  been  observed  that  the 
slip  amounts  only  to  a  proposal  that  a  policy  shall  be  prepared 
upon  certain  terms.  Those  terms,  so  far  as  they  are  to  bind 
the  insurer,  commonly  include  some  known  uniform  ones,  as  to 
which  there  can  be  no  question,  but  also  others  applying  to  the 
particular  transaction,  sometimes  obscurely  worded,  sometimes 
imperfectly  understood,  and  as  to  which  disputes  may  arise. 
This  consideration  alone  keeps  the  policy /'«y?rr/ until  objection 
is  waived.  On  the  other  hand,  the  terms,  so  far  as  they  are  to 
bind  the  assured,  include,  besides  the  implied  warranties,  pay- 
ment of  premium,  either  in  cash,  or  by  being  credited  in 
account. 

'  8  B.  &  C.  277. 


714  XENOS   AND   ANOTHER   V.    WICKHAM.         [CHAP.  II, 

If,  then,  the  plaintiffs  had  ordered  the  policy  without  the 
intervention  of  a  broker  or  his  obtaining  credit  for  himself, 
they  could  not  have  insisted  upon  receiving  it  w^ithout  paying 
the  company  in  cash.  Had  the  directors  offered  them  the  pol- 
icy, and  had  they  refused  to  pay  for  it,  they  might  have  treated 
the  negotiation  as  at  an  end,  and  cancelled  the  proposed  policy. 
Had  the  loss  happened  before  the  plaintiffs  called  for  the  policy 
and  paid  the  premium,  the  same  result  vi^ould  follow,  though 
the  insurers  might  not  choose  to  take  advantage  of  a  short  de- 
lay.    So  much  for  a  cash  transaction. 

If  the  directors  agreed  to  insure  against  the  plaintiffs'  prom- 
issory note  at  a  month,  like  considerations  would  arise.  Had 
they  in  such  case  prepared  the  policy,  and  left  it  with  their 
clerk,  and  the  plaintiffs  had  drawn  the  note,  and  left  it  with 
their  clerk,  it  is  difficult  to  see  why,  without  more,  the  policy 
should  vest  in  the  plaintiffs  and  not  the  note  in  the  company, 
which,  without  more,  it  clearly  would  not. 

In  the  principal  case  the  directors  were  content  to  take  the 
broker's  credit  instead  of  cash — that  is  to  say,  instead  of  stipu- 
lating for  cash  down  they  stipulated  for  the  broker's  allowing 
them  to  charge  him  in  account  with  the  premium  ;  and  this  the 
broker,  refusing  to  take  to  the  policy,  refused  to  allow  them 
effectually  to  do,  and  so  put  the  directors  in  the  same  position 
as  if  they  had  stipulated  for  cash,  and  cash  had  not  been  paid. 

Some  confusion  has  arisen  from  an  attempt  to  deal  with  this 
case  as  if  it  had  been  that  of  an  agent  of  a  named  principal, 
undoing,  without  authority,  a  contract  which  he  had  completely 
effected  in  pursuance  of  his  authority.  The  case  ought  not  to 
be  so  regarded.  The  broker  was  an  agent  to  procure  a  policy 
in  consideration  of  a  payment  to  be  made  to  him  by  his  em- 
ployers, with  whom,  directly,  the  defendant  had  nothing  to  do, 
he  taking  care  that  the  policy  was  effected  upon  the  given  terms 
and  upon  his  credit,  the  defendant  looking  to  him  for  payment, 
and  having  no  claim  against  his  employers.  Inasmuch,  then, 
as  the  broker  has  to  exercise  a  judgment  upon  the  sufficiency 
of  the  policy,  it  was  necessarily  within  the  scope  of  his  author- 
ity to  reject  that  prepared  as  not  being  one  or  the  one  ordered. 
When  he  does  so  properly  his  employer  gets  the  benefit  ;  when 
he  does  so  improperly  his  employer  has  his  remedy  by  action 
against  the  broker.  But  the  defendant,  who  dealt  with  the 
broker  only,  and  stipulated  for  his  taking  to  and  being  debited 
for  such  a  policy,  must,  upon  his  rejecting  it,  and  refusing  to 
be  debited  in  account  with  the  premium  thereupon,  have  an  equal 
right  to  consider  the  negotiation  at  an  end,  and  to  cancel  the 
proposed  policy,  as  if  cash  had  been  stipulated  for  and  refused. 


SEC.  II.]  XENOS   AND   ANOTHER   Z'.    WICKIIAM.  715 

The  transaction  cannot  properly  be  split  up  into  parts.  It 
stands  upon  the  same  footing  as  if,  upon  one  and  the  same 
occasion,  the  broker  had  ordered  the  policy  at  the  respondent's 
office,  and  while  he  waited  for  it  the  seals  had  been  affixed  to  a 
form  of  policy  in  another  room,  and  before  he  received  or 
assented  to  the  policy  he  had  said,  "  Stay  ;  I  made  a  mistake. 
I  decline  to  take  up  the  policy,  and  you  must  not  charge  me  in 
account  with  the  premium."  Whereupon  the  form  was  can- 
celled. 

No  subsequent  protest  by  the  principals  that  their  agent 
ought  to  have  acted  otherwise  can  avail  them.  Their  payment 
of  the  premium  was  not  made  to  the  insurers,  but  to  their  own 
ill-conducted  broker,  and  their  remedy  must  be  against  him. 
The  defendant  has  not  received,  but  has  been  refused,  the  pre- 
mium ;  and  he  was  in  no  default,  because  he  acted  upon  the  re- 
fusal of  the  broker,  to  whom  the  whole  business  of  effecting  the 
policy  was  left. 

The  fallacy  of  the  argument  for  the  plaintiffs  consists  in  sepa- 
rating the  preparation  of  the  policy  from  the  rejection  of  it  by 
the  broker,  and  thus  splitting  up  into  several  contracts,  one  of 
which  is  alleged  to  be  authorized  and  the  other  not,  what  in 
reality,  though  distinct  events  in  point  of  time,  constituted 
together  but  one  negotiation,  which,  by  reason  of  the  miscon- 
duct of  the  plaintiffs'  agent,  was  abortive. 

The  question  is  thus  answered  in  the  negative. 

Lord  Chancellor  (Lord  Chelmsford).  My  Lords,  the 
difference  of  opinion  which  has  prevailed  among  the  learned 
judges  in  this  case  must  necessarily  diminish  the  confidence 
which  I  feel  in  the  judgment  I  have  formed  upon  it,  more  espe- 
cially as  that  judgment  is  not  in  accordance  with  the  views  of 
the  majority  of  the  judges. 

The  question  is  one  more  of  fact  than  of  law  ;  and  therefore, 
in  considering  it,  it  will  be  necessary  to  refer  to  the  facts  con- 
tained in  the  special  case.  [His  Lordship  stated  them  very 
fully.] 

The  usage  with  respect  to  premiums  upon  insurances  effected 
by  brokers  is  clearly  explained  by  Lord  Ellenborough  in  Jen- 
kins V.  Power,'  and  by  Bayley,  J.,  in  Power  v.  Butcher.^  The 
latter  learned  judge  says  :'  "  According  to  the  ordinary  course 
of  trade  between  the  assured,  the  broker,  and  the  underwriter, 
the  assured  do  not,  in  the  first  instance,  pay  the  premium  to 
the  broker,  nor  does  the  latter  pay  it  to  the  underwriter.  But, 
as  between  the  assured  and  the  underwriter,  the  premiums  are 
considered  as  paid.  The  underwriter,  to  whom  in  most  in- 
1  9  M.  &  S.  282.  '  10  B.  &  C.  329.  »  /did.  339. 


yi6  XENOS   AND   ANOTHER  V.   WICKHAM.         [CHAP.  II. 

Stances  the  assured  are  unknown,  looks  to  the  broker  for  pay- 
ment, and  he  to  the  assured.  The  latter  pay  the  premiums  to 
the  broker  only,  and  he  is  a  middleman  between  the  assured 
and  the  underwriter." 

The  questions  which  arise  out  of  the  facts  of  the  case  are  : 
First,  whether  there  was  a  complete  contract  of  insurance  be- 
tween the  parties  ;  and,  second,  if  there  was  a  complete  con- 
tract, whether  it  was  afterward  cancelled  by  the  plaintiffs' 
authority.' 

Upon  the  first  question  we  have  no  evidence  of  the  fact  of  the 
execution  of  the  policy,  except  that  which  arises  upon  the  face 
of  the  instrument  itself,  and  upon  the  facts  stated  in  the  special 
case  that  the  policy  (which  must  be  taken  to  mean  the  executed 
policy)  is  kept  by  the  company  until  sent  for  by  the  assured  or 
his  broker.  The  policy  purports  to  be  signed,  sealed,  and  de- 
livered by  two  of  the  directors  of  the  company  in  the  presence 
of  Reginald  Scaife,  resident  secretary.  This  statement  on  the 
face  of  the  policy  that  all  acts  were  done  to  render  the  execution 
complete,  which  is  acknowledged  by  the  directors  who  executed 
it,  must,  I  think,  be  taken  to  be  conclusive  against  the  com- 
pany, that  it  was  not  only  signed  and  sealed,  but  also  delivered. 
We  all  know  the  formal  mode  of  executing  a  deed  by  the  words, 
"  I  deliver  this  as  my  act  and  deed,"  a  form  which,  no  doubt, 
or  something  equivalent  to  it,  was  observed  upon  this  occasion. 
The  policy,  most  probably,  was  afterward  given  to  the  secre- 
tary to  be  kept  till  called  for.  Now,  although  the  policy  was 
thus  retained  by  the  officers  of  the  company,  when  formal  exe- 
cution of  it  had  taken  place,  they  held  it  for  the  plaintiffs, 
whose  property  it  became  from  that  moment.  It  is  a  mistake 
to  suppose,  as  some  of  the  learned  judges  have  done,  that  the 
policy  wanted  its  complete  binding  effect  till  it  was  delivered 
to  and  accepted  by  Lascaridi.  The  usage  of  insurance  com- 
panies, to  keep  the  policy  until  sent  for  by  the  assured  or  his 
broker,  is  not  for  the  purpose  of  completing  the  instrument  by 
a  delivery  personally  to  the  party  or  his  agent,  but  merely  as  a 
matter  of  convenience.  And  as  to  Lascaridi's  acquiescence  and 
acceptance  being  necessary  to  complete  the  contract,  I  appre- 
hend that  there  is  no  ground  for  such  an  opinion.  He  was  the 
broker  and  agent  to  the  plaintiffs,  to  effect  an  insurance  upon 
their  vessel  upon  certain  terms  dictated  by  them.  He  prepared 
the  slip  according  to  his  directions.  When  the  policy  was  exe- 
cuted, in  exact  conformity  to  his  instructions,  his  duty  was  so 
far  discharged  ;  and  without  the  authority  of  the  plaintiffs  he 
could  not  refuse  to  accept  it.      They  had  effected,  through  their 

1  So  much  of  the  opinion  as  relates  to  this  question  has  been  omitted.— Ed. 


SEC.  II.]  XENOS   AND    ANOTHER   V.    WICKIIA.M.  717 

agent,  a  complete  binding  contract,  which  they  alone  could 
have  a  right  to  abandon. 

I  think  that  the  judgment  of  the  Exchequer  Chamber  was 
wrong  and  ought  to  be  reversed,  and  that  judgment  should  be 
entered  for  the  plaintiffs. 

'  Lord  Cr.vnworth.  My  Lords,  my  noble  and  learned  friend 
has  gone  so  fully  into  the  facts  of  this  case,  that  I  shall  not 
further  advert  to  them,  but  shall  assume  that  they  are  present 
to  the  minds  of  your  Lordships.' 

There  is  no  direct  evidence  as  to  what  actually  took  place 
when^the  policy  was,  according  to  the  practice  (as  stated  in  the 
language  of  the  special  case),  filled  up  from  the  slip  by  the 
officers  of  the  company  ;  but  as  the  policy  purports  to  have 
been  signed,  sealed,  and  delivered  by  two  directors  of  the  com- 
pany in  the  presence  of  the  registrar,  in  pursuance  of  the  powers 
and  directions  contained  in  the  deed  of  settlement  of  the  com- 
pany, the  fair  inference  is  that  this  was  the  course  prescribed 
by  the  deed,  and  that  that  course  had  been  duly  followed. 

But,  as  to  the  effect  of  what  was  so  done,  the  parties  differ. 
The  appellants  contend  that  by  thus  signing,  sealing,  and  de- 
livering the  policy,  the  directors  made  it  an  instrument  thence- 
forth binding  on  the  company.  On  the  other  hand,  the  re- 
spondent contends  that  until  the  policy  was  taken  away  by  the 
assured  or  his  broker,  it  did  not  become  binding  on  the  com- 
pany. This  latter  view  is  that  which  has  been  taken  by  the 
great  majority  of  the  learned  judges,  and  it  is  therefore  not 
without  some  hesitation  that  1  have  arrived  at  a  different  con- 
clusion, and  that  I  concur  with  the  opinions  of  the  small  major- 
ity of  the  judges  who  heard  the  case  when  it  was  argued  at  your 
Lordships'  bar.  I  am  of  opinion  that  from  the  moment  when 
the  directors,  acting,  as  I  infer  they  did,  in  pursuance  of  the 
powers  and  duties  conferred  and  imposed  on  them  by  the  deed 
of  settlement,  executed  the  policy,  it  became  absolutely  binding 
on  the  company  ;  and  that  it  was  not  necessary,  in  order  to 
give  it  binding  efficacy,  that  it  should  be  taken  away  by  the 
appellant  or  his  broker. 

I  come  to  this  conclusion  on  the  following  grounds  :  In  the 
first  place,  the  efficacy  of  a  deed  depends  on  its  being  sealed 
and  delivered  by  the  maker  of  it  ;  not  on  his  ceasing  to  retain 
possession  of  it.  This,  as  a  general  proposition  of  law,  cannot 
be  controverted.  It  is  not  affected  by  the  circumstance  that 
the  maker  may  so  deliver  it  as  to  suspend  or  qualify  its  bind- 
ing effect.  He  may  declare  that  it  shall  have  no  effect  until  a 
certain  time  has  arrived,  or  till  some  condition  has  been  per- 
'  A  portion  of  the  opinion  has  been  omitted. — Ed. 


7l8  XENOS   AND    ANOTHER   V.    WICKHAM.  [cHAP.  II. 

formed,  but  when  the  time  has  arrived,  or  the  condition  has 
been  performed,  the  delivery  becomes  absolute,  and  the  maker 
of  the  deed  is  absoluteh'  bound  by  it,  whether  he  has  parted 
with  the  possession  or  not.  Until  the  specified  time  has  arrived, 
or  the  condition  has  been  performed,  the  instrument  is  not  a 
deed.     It  is  a  mere  escronK 

If,  therefore,  the  directors  who  executed  this  policy,  deliv- 
ered it  only  conditionally — i.e.^  to  take  effect  only  when  taken 
away  by  the  appellants  or  their  broker,  then,  as  it  was  not  so 
taken  awaj',  it  never  became  operative.  But  I  can  discover 
nothing  leading  to  the  inference  that  there  was  any  such  condi- 
tion attached  to  the  delivery.  The  expression  in  the  case  that 
the  policy  is  kept  by  the  company  until  it  is  sent  for  by  the 
assured  or  his  broker,  can  only  mean  that  this  is  the  ordinary 
course  of  practice.  But  such  a  practice  cannot,  without  more, 
have  the  effect  of  converting  that  which  would  otherwise  be  an 
absolute  into  a  conditional  delivery  ;  of  converting  delivery  as 
a  deed  into  delivery  as  an  escrow.  The  practice  referred  to  is, 
at  least,  as  consistent  with  the  hypothesis  of  delivery  as  a  deed 
as  of  delivery  as  an  escrow.  A  policy  of  this  company  can  only 
be  executed  (as  I  presume)  when  certain  of  the  directors  and 
officers  of  the  company  are  assembled  ;  and  this  explains  why 
it  is  executed  in  the  absence  of  the  party  assured.  The  practice 
assumes  the  previous  assent  on  the  part  of  the  assured  to  the 
policy  to  be  executed.  It  is  not  the  practice  that  the  assured 
should  call  for  or  examine  the  policy  before  he  takes  it  away, 
but  that  he  should  send  for  it,  evidently  treating  it  as  an  in- 
strument complete  before  it  is  taken  away  from  the  office.  If, 
when  it  has  been  sent  to  him,  he  should  discover  that  it  is  not 
conformable  with  the  slip,  his  only  remedy  would  be  a  remedy 
in  equity  to  get  it  corrected  according  to  the  real  meaning  of 
the  parties. 

I  know  of  nothing  intermediate  between  a  deed  and  an  escrow. 
If  the  policy,  when  signed,  sealed,  and  delivered  by  the  direct- 
ors, does  not  thereby  immediately  become  the  deed  of  the  com- 
pany, I  do  not  see  when  and  how  it  afterward  acquires  that 
character.  The  practice  is,  that  it  should  be  kept  by  the  com- 
pany till  sent  for  by  the  assured  or  his  broker  ;  not  till  the 
assured  has  had  an  opportunity  of  examining  it,  so  as  to  ascer- 
tain that  it  is  conformable  to  the  slip. 

It  can  hardly  be  argued  that  after  the  assured  has  sent  for 
and  obtained  possession  of  it  the  company  is  not  bound  by  it, 
even  if  it  is  not  in  conformity  with  the  slip.  Suppose  the  liabil- 
ity of  the  company,  according  to  the  slip,  was  to  endure  for  a 
year,  but  that  by  the  policy  it  is  restricted  to  six  months,  the 


SEC.  11.]  GIL15KRT   f.  THE    X.  AMKK.  MRK  IXS.  CO.  719 

assured  on  receiving  the  policy  and  discovering  the  error  might 
well  object,  and  insist  on  having  a  different  policy  ;  but  yet  if 
a  loss  should  happen  within  the  six  months,  it  surely  cannot  be 
doubted  that  the  company  would  be  liable  on  the  policy  actuall}' 
executed.  So  if  a  loss  should  occur  while  the  policy  remains  in 
the  office,  in  consequence  of  the  assured  having  carelessly  for- 
gotten to  send  for  it.  This  can  only  be  because  it  had  been 
completely  executed,  though  never  seen  and  approved  by  the 
assured.  And  if  executed,  I  am  of  opinion  that  it  became  com- 
plete when  signed,  sealed,  and  delivered.  If  the  usage  had 
been  that  it  should,  after  being  signed,  sealed,  and  delivered, 
remain  in  the  hands  of  the  secretary  till  the  assured  or  his 
broker  had  done  some  act  signifying  his  approbation  of  it,  tliat 
might  have  raised  a  question  whether,  until  that  approbation 
had  been  expressed,  it  was  more  than  an  escrow.  But  no  such 
usage  is  stated.  On  the  contrary,  the  thing  sent  for  by  the 
assured  or  his  broker  is,  as  I  have  already  stated,  clearly  looked 
to  as  something  complete  before  it  is  taken  from  the  office,  not 
as  a  document  to  be  made  perfect  afterward  by  some  act  of  the 
assured. 

On  these  grounds  I  have  come  to  the  conclusion,  after  much 
consideration,  that  the  three  learned  judges  who  were  the 
majority  giving  their  opinions  to  your  Lordships  were  right  ; 
and  so,  that  judgment  ought  to  be  for  the  appellants. 

Judgment  reversed,  and  judgment  given  for  the  plaintiff. 


GILBERT  V.    THE    NORTH    AMERICAN    FIRE    INSUR- 
ANCE  COMPANY. 

In  the  Supreme  Court  of  Judicature  of  New  York, 
January  Term,  1840. 

S^Rcported  in  I-},  IVcude// 42.] 

This  action  was  tried  at  the  Oswego  Circuit,  in  Decem- 
ber, 1838,  before  the  Hon.  Philo  Gridley,  one  of  the  circuit 
judges. 

The  defendants,  on  December  7th,  1836,  entered  into  a  policy 
of  insurance  against  fire,  to  the  amount  of  $4000,  upon  a  stone 
flouring  mill,  and  a  framed  warehouse  attached  thereto,  be- 
longing to  the  plaintiff,  situate  at  Oswego,  for  one  year  from 
the  date  of  the   policy.     The   mill   took  fire  on  October  23d, 


•20 


GILBERT   V.    THE   X.  AMER.  FIRE   INS.  CO.      [cHAP.  II, 


1837,  and  was  injured  to  a  great  amount.  The  first  objection 
taken  to  a  recovery  was  an  alleged  defect  in  the  preliminary 
proofs.  This  objection  was  overruled  by  the  circuit  judge. 
The  defendants  next  undertook  to  show  that  the  plaintiff  had, 
without  their  assent,  parted  with  his  interest  in  the  premises 
insured  ;  and  they  accordingly  produced  in  evidence  a  deed  in 
fee,  bearing  date  May  19th,  1837,  whereby  the  plaintiff  for  the 
consideration  of  $16,000,  conveyed  the  property  to  one  Jeremiah 
Nottingham.'  The  grantee  in  that  deed  being  called  by  the 
plaintiff,  testified  that  he  entered  into  a  contract  with  the  plain- 
tiff for  the  purchase  of  the  premises  ;  that  it  was  agreed  that 
the  plaintiff  should  execute  a  deed  to  him,  and  that  he  (the 
witness)  should  execute  a  mortgage  back  to  secure  the  payment 
of  $11,000,  and  as  to  the  residue  of  the  purchase-money — viz., 
$5000,  that  it  should  remain  open  until  the  close  of  a  contro- 
versy between  the  plaintiff  and  one  White,  the  grantor  of  the 
plaintiff,  in  respect  to  encumbrances  charged  upon  the  prop- 
erty ;  that  the  deed  and  mortgage  should  be  placed  in  the  hands 
of  Babcock,  of  Oswego,  to  be  retained  by  him  until  the  settle- 
ment of  the  controversy  between  the  plaintiff  and  White,  and 
then  to  be  delivered  over  and  take  effect.  The  deed  and  mort- 
gage were  accordingly  executed,  and  were  both  left  in  the  hands 
of  the  witness  to  forward  to  Babcock.  He  subsequently  ex- 
plained that  the  understanding  was,  that  the  deed  should  be 
transmitted  to  the  clerk's  office  of  Oswego,  to  be  recorded,  and 
then  handed  over  to  Mr.  Babcock,  to  remain  until,  etc.  He 
accordingly  sent  the  deed  to  the  clerk's  office,  and  the  mort- 
gage to  Babcock,  in  whose  hands  both  the  deed  and  mortgage 
now  remain  ;  the  witness  testifying  that  he  had  never  accepted 
or  received  the  deed.  The  deed  and  mortgage  were  recorded 
on  the  same  day.  The  defendants  also  gave  in  evidence  a  deed 
of  assignment,  bearing  date  July  5th,  1837,  executed  by  the 
plaintiff  to  one  William  P.  Nottingham,  in  trust,  for  the  pay- 
ment of  certain  debts,  whereby  the  plaintiff  granted  all  his  real 
estate,  a  schedule  whereof  was  declared  to  be  annexed.  On 
production  of  the  schedule  it  was  manifest  that  the  property  at 
Oswego  was  not  embraced  in  the  assignment.  Upon  this  evi- 
dence the  counsel  for  the  defendants  moved  for  a  nonsuit,  which 
being  refused,  an  exception  was  taken,  and  the  jury,  under  the 
charge  of  the  judge,  found  a  verdict  for  the  plaintiff.  The 
defendants  ask  for  a  new  trial. 

IV.  C.  Noyes  for  the  defendants. 

W.  Duer  &>  B.  Davis  Noxon  for  the  plaintiff. 
*  Only  so  much  of  the  case  is  given  as  relates  to  this  question. — Ed. 


SEC,  II.]  GILBERT   7'.  THE   N.  AMER.  FIRE  INS.  CO.  72 1 

Bronson,  J.  III.  The  deed  of  May  19th,  1837,  to  Jeremiah 
Nottingham,  presents  a  more  important,  though  not  a  very 
difficult  question.  If  the  grantor  do  not  intend  that  his  deed 
shall  take  effect  until  some  condition  is  performed,  or  the  hap- 
pening of  some  future  event,  he  should  either  keep  it  himself 
or  leave  it  with  some  third  person  as  an  escrow,  to  be  delivered 
at  the  proper  time.  If  he  deliver  it  as  his  deed  to  the  grantee, 
it  will  operate  immediately,  and  without  any  reference  to  the 
performance  of  the  condition,  although  such  a  result  may  be 
contrary  to  the  express  stipulation  of  the  parties  at  the  time  of 
the  delivery.  This  is  one  of  the  cases  in  which  the  law  fails  to 
give  effect  to  the  honest  intention  of  the  parties,  for  the  reason 
that  they  have  not  adopted  the  proper  legal  means  of  accom- 
plishing their  object. 

But  this  case  does  not  come  within  the  rule.  There  was  no 
delivery  of  the  deed,  either  upon  condition  or  otherwise  to  the 
grantee.  The  agreement  of  the  parties  was,  in  substance,  that 
the  deed  should  be  placed  in  the  hands  of  Mr.  Babcock,  until 
the  controversy  with  White  should  be  settled,  and  then,  and 
not  before,  the  conveyances  should  be  delivered.  It  was  not 
necessary  that  the  word  escrow  should  be  used  in  making  this 
arrangement.  The  intention  of  the  parties  was  sufficiently 
manifested  without  it.  Clark  v.  Gifford,  10  Wendell,  310.  If 
Babcock  had  been  present,  and  the  conveyances  had  been 
handed  to  him  at  that  time,  there  would  have  been  no  question 
about  it.  And  although  absent,  if  the  deed  had  been  sent  to 
him,  with  the  proper  instructions,  by  the  hand  of  a  third  per- 
son, it  could  not  be  maintained  that  this  would  amount  to  a 
delivery  to  the  grantee. 

Now,  what  was  done  in  this  case  ?  The  deed,  as  well  as  the 
mortgage  was  left  in  the  hands  of  Nottingham  to  be  forwarded 
to  Babcock,  the  depositary.  It  was  not  put  into  the  hands  of 
the  grantee  to  keep,  but  merely  as  a  mode  of  transmission  to 
Babcock,  as  was  well  said  by  the  judge  on  the  trial.  There 
was  neither  any  formal  delivery,  nor  any  intent  that  the  grantee 
should  take  it  as  the  deed  of  the  grantor.  Nottingham  received 
it,  not  as  grantee,  but  as  the  agent  of  the  grantor  for  a  special 
purpose  ;  and  I  see  no  good  reason  why  he  could  not  execute 
that  trust  as  well  as  a  stranger.  He  did  execute  it  with  fidelity, 
and  the  deed  still  remains  with  the  depositary  agreed  on  by  the 
parties. 

The  fact  that  the  deed  had  been  recorded  was  only  prima 
facie  evidence  of  a  delivery,  which  might  be  rebutted.  Jack- 
son V.  Perkins,    2  Wendell,   308.     What  would  have  been  the 


722  GILBERT  V.  THE   N.  AMER.  FIRE  INS.  CO,      [cHAP.  II. 

consequence  had  Nottingham  conveyed  to  a  bond  fide  purchaser 
need  not  be  considered  on  this  occasion.' 

New  trial  denied. 

'  It  has  been  held  in  one  case  that  a  deed  may  be  delivered  to  the  grantee 
for  the  purpose  of  transmission  to  a  third  person,  to  be  held  by  him  in 
escrow  until  the  happening  of  some  event  when  it  should  take  effect  as  a 
conveyance,  and  that  such  delivery  would  not  be  absolute.  Gilbert  v. 
N.  A.  Fire  Ins.  Co.,  23  Wend.  43.  In  that  case  the  grantee  had  deposited 
the  deed  with  the  third  person  in  pursuance  of  the  arrangement,  the  con- 
dition had  not  been  performed,  and  the  grantea  made  no  claim  under  the 
deed.  The  case  presented  merely  the  question  whether  the  grantor  still 
retained  an  insurable  interest  in  the  premises  described  in  the  deed,  the 
nominal  grantee  testifying  to  the  terms  in  which  the  deed  was  delivered  to 
him.  Limited  to  its  peculiar  circumstances,  no  fault  can  be  found  with  the 
decision  ;  but  if  the  grantee  had  retained  the  deed,  claiming  that  its  deliv- 
ery to  him  was  absolute,  and  in  a  contest  between  him  and  the  grantor, 
parol  proof  of  a  conditional  delivery  had  been  offered,  I  think  the  result 
would  have  been  different.  If  I  am  wrong  in  this  conclusion  the  case  dis- 
closes an  avenue  for  the  overthrow  of  titles  by  parol  proof,  which  was  sup- 
1  posed  to  be  closed  by  the  rule  to  which  it  would  seem  to  form  an  exception. 
The  reason  given  for  the  rule  excluding  parol  evidence  of  a  conditional  de- 
livery to  the  grantee  applies  to  all  cases  where  the  delivery  is  designed  to 
give  effect  to  the  deed,  in  any  event,  without  the  further  act  of  the  grantor. 
"  When  the  words  are  contrary  to  the  act,  which  is  the  delivery,  the  words 
are  of  none  effect."  (Co.  Litt.  36«.)  "Because  then  a  bare  averment, 
without  any  writing,  would  make  void  every  deed."  (Cro.  Eliz.  S84.)  "  If 
I  seal  my  deed  and  deliver  it  to  the  party  himself  to  whom  it  is  made  as 
an  escrow  upon  certain  conditions,  etc.,  in  this  case  let  the  form  of  the 
words  be  what  it  will,  the  delivery  is  absolute,  and  the  deed  shall  take  effect 
as  his  deed  presently."  Shep.  Touch.  59  ;  Whyddon's  Case,  Cro.  Eliz. 
520  ;  Cruise's  Dig.  Title,  33,  Deeds,  ch.  2,  §  80.  If  a  delivery  to  the  grantee 
can  be  made  subject  to  one  parol  condition,  I  see  no  ground  of  principle 
which  can  exclude  any  parol  condition.  The  deed  having  been  delivered 
to  the  grantee,  I  think  the  parol  evidence  that  the  delivery  was  conditional 
was  properly  excluded. 

But  there  is  also  another  ground  on  which  the  evidence  was  properly  ex- 
cluded. "  It  is  essential  to  an  escrow  that  it  be  delivered  to  a  third  person, 
to  be  by  him  delivered  to  the  obligee  or  grantee,  upon  the  happening  of 
some  event,  or  the  performance  of  some  condition  from  which  time  it  be- 
comes absolute."  James  v.  Vanderheyden,  i  Paige,  238.  By  the  agree- 
ment, as  offered  to  be  proved,  the  deed  of  Bingham  to  Braman  was  to  be 
held  as  an  escrow  until  Braman's  return,  "and  then  to  be  given  up  to 
Bingham."  A  deed  thus  delivered  is  not  an  escrow,  although  the  parties 
may  call  it  such,  because  there  is  no  event  in  which  it  is  to  be  delivered  to 
the  grantee.  A  deed  so  delivered,  if  not  so  intended,  when  deposited,  to 
operate  as  a  deed  in  presenti,  could  never  have  any  validity  without  a  new 
agreement  of  the  parties.  James  v.  Vanderheyden,  supra.  If  there  were 
nothing  in  the  case  to  aid  in  ascertaining  the  intention  of  the  parties  in 
making  the  delivery,  beyond  the  parol  proof  which  was  offered,  the  deed 
would  be  held  absolute  on  account  of  its  delivery  to  the  grantee,  or  it  would 
be  held  void  for  want  of  any  delivery  ;  it  could  not  be  treated  as  an 
escrow. — Selden,  J.,  Braman  v.  Bingham,  26  N.  Y.  483,  491-493. — Ed. 


SEC.   II.]  ORDINARY    OF   N.  J.  7'.  THATCHER    ct   al.  723 


ORDINARY   OF  THE    STATE    OF    NEW   JERSEY  v. 
ROBERT    THATCHER  and  Others. 

•    In  the  Supreme  Court  of  Judicature  of  New  Jersey, 
November  Term,  i<S79. 

\  Re  ported  in  41  Xfx^i  Jersey  Laiu  Reports  403.] 

Suit  in  the  Hunterdon  Circuit  on  a  guardian's  bond.  Under 
the  direction  of  the  Court  a  special  verdict  was  rendered.  The 
facts  found  are  sufficiently  stated  in  the  opinion. 

Argued  at  June  Term,  1S79,  before  Beasley,  C.J.,  and  Dal- 
rimple  and  Woodhull,  JJ. 

J.  y.  Voorhees  for  the  plaintiff. 

John  T.  Bird  for  the  defendants. 

The  opinion  of  the  Court  was  delivered  by 

Beasley,  C.J.  The  first  subject  of  inquiry  in  this  case  is, 
whether  a  guardian's  bond,  given  in  the  common  form  to  the 
Ordinary,  can  be  delivered  in  escrow  to  the  surrogate  of  a 
county  ?  The  proposition  is  stated  intentionally  in  this  general 
form,  so  as  to  separate  the  question,  for  the  purposes  of  the  re- 
search, from  the  specialties  of  this  particular  case,  and  which 
specialties  will  be  considered  in  another  aspect  of  the  discussion. 

It  has  been  frequently  decided  that  a  deed  may  be  delivered  i^ 
in  escrow  to  a  co-obligor,  even  though  such  obligor  be  the  prin- 
cipal bondsman.  Such  were  the  judgments  in  the  leading  cases 
in  this  State  of  State  Bank  v.  Evans,  3  Green,  155,  and  of  Black  v. 
Lamb,  i  Beasley,  108  ;  2  Beasley,  455.  In  both  of  these  in- 
stances the  deed  in  question  respectively  was  delivered  condi- 
tionally to  one  of  the  co-obligors,  and  in  each  case  the  instru- 
ment was  regarded  as  having  been  well  delivered  in  escrotu. 
This  same  doctrine  is  maintained  by  such  a  multitude  of  authori- 
ties that  it  seems  hardly  open  to  controversy  anywhere,  and  it 
certainly  is  at  rest  so  far  as  concerns  our  own  tribunals.  It 
might,  however,  tend  to  misconception  if  this  general  statement 
of  the  legal  rule  should  not  be  qualified  by  an  intimation  that 
there  may  be  cases  in  which  an  obligor  may,  by  his  incaution, 
impart  to  the  depositary  of  the  instrument  delivered  in  escrow\ 
such  an  apparent  right  to  pass  it  away  in  an  unqualified  form  | 
to  the  obligee,  as  to  prevent  such  obligor  from  setting  up  the 
existence  of  a  condition  that  was  to  have  been  complied  with 
before  such  instrument  became  deliverable.  This  restrictive 
rule  has  been  sanctioned  by  a  number  of  the  courts  of  this 
country,  and  has  recently  been  enforced  by  the  Supreme  Court 


724  ORDINARY    OF   N.  J.  V.  THATCHER   et  al.      [CHAP.  II. 

of  the  United  States  in  the  case  of  Dair  v.  United  States,  16 
Wall.  I  in  which  a  bond  perfect  on  its  face  had  been  executed 
by  sureties  and  by  them  delivered  in  escroiv  to  the  principal 
obligor,  and  who  had  passed  it  over  in  the  ordinary  course  to 
the  government  ;  the  attempted  defence  was  that  the  instru- 
ment had  been  placed  with  the  principal  obligor  as  an  escrow, 
and  had  been  delivered  by  him  in  violation  of  the  condition 
imposed  ;  but  the  Court  adjudged  that  as  the  principal  obligor 
had  been  clothed  with  an  apparent  right  to  transfer  the  bond 
without  qualification,  and  as  the  officer  of  the  government  re- 
ceiving it,  no  matter  how  vigilant,  would  be  unavoidably  de- 
ceived by  such  conduct,  the  defence  could  not  prevail.  The 
decisions  in  the  cases  of  State  v.  Peck,  53  Maine,  284  ;  State  v. 
Pepper,  31  Indiana,  76,  and  Millett  v.  Parker,  2  Mete.  (Ky.) 
608,  are  to  the  same  effect. 

From  this  explication  it  will  be  noted  that  the  cases  in  this 
train  proceed  on  the  ground,  not  of  a  denial  that  a  deed  may 
be  delivered  by  a  surety  in  escrow  to  the  principal  obligor,  but 
that  an  estoppel  in  pais  may  arise  from  the  position  of  the  cir- 
cumstances ;  the  consequence  therefore  is,  that  the  principle 
thus  introduced  does  not  obtain  unless  the  recipient  of  the  bond 
is  so  situated  as  almost  unavoidably  to  be  misled,  by  the  ap- 
pearance of  things,  into  the  belief  that  the  obligor  in  making 
delivery  has  the  legal  power  to  do  such  act.  If  there  is  in  the 
affair  anything  to  put  him  on  his  guard,  as,  for  example,  the 
indications  on  the  face  of  such  a  bond  as  is  now  under  consid- 
eration, which  has  not  been  executed  by  all  the  persons  named 
in  its  body  as  obligors,  the  rule  does  not  become  applicable. 
Inasmuch,  however,  as  the  bond  in   the  present  case  was  not 

'  delivered  by  the  sureties  through  any  intermediate  agency,  but 
by  their  own  hands,  this  doctrine  of  estoppel  is  not  pertinent, 

'  and  was  alluded  to  only  to  avoid  mistake  with  respect  to  the 
extent  of  the  general  rule  that  the  co-obligor  may  hold  the  deed 
in  escroiv  in  behalf  of  the  sureties. 

As  the  surrogate  received  this  bond  from  the  sureties  them- 
selves, the  only  inquiry  under  the  present  head  is,  as  to  the 
legal  status  of  that  officer  in  an  affair  of  this  kind.  Does  he 
stand  sufficiently  aside  of  the  obligation,  so  as  to  be  capable  of 
taking,  for  the  benefit  of  the  sureties,  the  bond  in  escrow  ;  or 
does  he,  in  its  reception,  represent,  simpliciter,  the  obligee  ?  Can 
this  officer  in  such  a  matter  be  the  agent  of  the  surety,  as  well  as 
the  agent  of  the  surrogate-general  ? 

My  consideration  of  the  subject  has  led  me  to  the  conclusion 
that  the  count}'  surrogate  is  in  this  respect  the  agent  of  the 
Ordinary  alone,    who   is   the   obligee   in  the   instrument.     The 


SEC.  II.]  ORDINARY    UF   N.  J.  1>.  TIIATCHKR   i/   al.  725 

procedure  comprising  the  making  of  these  bonds  is  this  :  a 
petition  is  presented  to  the  Orphans'  Court,  praying  for  the 
appointment  of  a  person  nominated  as  guardian,  and  offering 
to  have  executed  a  bond  with  certain  named  sureties  ;  the  Court 
assenting,  a  bond  is  prepared  and  given  to  the  surrogate,  wiio 
presents  it  to  the  Court  for  approval,  and,  upon  being  passed, 
files  it  in  his  office.  In  form,  the  bond  is  between  the  guardian 
and  his  sureties  of  the  one  part,  and  the  Ordinary,  or  surrogate- 
general,  of  the  other. 

It  is  thus  evident  that  unless  the  tradition  of  these  bonds  to 
the  county  surrogate  be  a  tradition  in  law  to  the  surrogate-gen- 
eral, they  are  not,  in  point  of  fact,  passed  to  him  at  all.  It 
seems  to  me,  therefore,  that  the  county  surrogate  is,  in  this 
matter,  the  representative  of  his  superior  officer,  and  that 
therein  his  entire  function  consists  in  a  right  to  accept  a  deliv- 
ery of  the  bond.  He  has  no  authority  to  do  more  than  this  ; 
he  is  not  empowered  to  make  any  terms,  or  to  assent  to  any 
conditions,  in  behalf  of  his  principal  ;  and  being  a  public  officer, 
the  extent  of  his  ability  is  known  to  all  persons  dealing  with 
him.  The  receipt  of  the  bond  on  the  part  of  the  surrogate  is  a 
mere  ministerial  act,  and  in  doing  it  he  is  the  deputy  of  the 
Ordinary.  It  is,  too,  an  official  act,  and,  being  a  public  officer, 
he  cannot  in  such  a  transaction  be  the  agent  of  an  individual. 
In  short,  in  my  judgment,  the  surrogate-general  receives  this 
bond  from  these  obligors  by  the  hand  of  his  subordinate,  and, 
in  point  of  law,  the  transaction  consists  of  a  delivery  of  the 
instrument  to  the  obligee. 

This  being  the  situation,  I  think  it  follows  unavoidably  that 
this  defence  is  invalid,  for  a  deed  cannot  be  delivered  in  escrow 
to  the  grantee  or  obligee.  Authorities  may  be  found  that  deny, 
or  question,  this  proposition,  but  I  see  not  the  least  ground  for 
saying  that  it  has  not  always  been  one  of  the  admitted  canons 
of  the  common  law.  I  am  not  aware  that  any  English  judge 
has  ever  doubted  the  prevalence  of  the  rule.  The  doctrine  is 
stated  as  established  law,  both  in  the  Touchstone  and  in  the 
Institutes  of  Lord  Coke.  In  the  former  of  these  authoritative 
works  the  principle  is  stated  in  these  plain  words  :  "  The  de- 
livery of  a  deed  as  an  escrow  is  said  to  be  where  one  doth  make 
and  seal  a  deed  and  deliver  it  unto  a  stranger  until  certain  con- 
ditions be  performed,  and  then  to  be  delivered  to  him  to  whom 
the  deed  is  made,  to  take  effect  as  his  deed."  And,  again,  in  a 
subsequent  passage,  this  master  of  the  common  law  says  :  "  So 
it  must  be  delivered  to  a  stranger  ;  for  if  I  seal  my  deed  and 
deliver  it  to  the  party  himself,  to  whom  it  is  made  as  an  escroio 
upon  certain  conditions,  etc.,  in  this  case  let  the  form  of  the 


726  ORDINARY   OF   N.  J.  V.  THATCHER   ct  al.       [cHAP.  II. 

words  be  what  it  will,  the  delivery  is  absolute,  and  the  deed 
shall  take  effect  as  his  deed   presently,   and   the  party  is   not 
bound  to  perform  the  conditions  ;  for  in  traditionibus  chartarum 
non  quod  dictum,  sed  quod  factum,  est  inspicitur.'"     Shep.  Touch.  58, 
59.     And  prior  to  this  authority  we  find  the  same  doctrine  stated 
as  settled   law  in   the  treatise  of  Perkins   (p.   61),  which  Lord 
Coke,  in  the  preface  to  Volume  X.  of  his  reports,  tells  us  was 
"  wittily  and  learnedly  composed  and  published"  in   the  reign 
of  Edward  VI.     There  are  also  a  number  of  references  to  the 
doctrine  in  the  Year  Books.      14  Hen.  VIII.,  p.  28  ;   18  Hen.  VI., 
p.  42.     And  the  following  references  will  serve  to  show  how  ex- 
tensively the  existence  of  this  legal   rule  has   been  recognized 
both  by  the  English  and  American  courts  :  Co.  Litt.  36  ;  Thor- 
oughgood's  Case,  9  Rep.  137  ;  Whyddon's  Case,  Cro.  Eliz.  520  ; 
Blunden  v.  Wood,  Cro.  Jac.   85  ;   Holford  v.  Parker,  Hob.  246  ; 
Bushell  V.  Pasmore,  6  Mod.  218  ;  T.  Moore,  642  ;  Foley  v.  Cow- 
gill,  5   Blackf.  18  ;  Gilbert  v.  N.  Amer.  Ins.  Co.,  23  Wend.  43  ; 
Den  V.  Partee,  2  Dev.  &  Bat.  530  ;  Simonton's  Estate,  4  Watts, 
180  ;  State  Bank  v.  Chetwood,  3  Halst.  i. 
,      With  respect  to  the  authorities  cited  in  the  well-considered 
land  learned  brief  of  the  counsel  of  the  defendants,  it   is  to  be 
observed  that  most  of  them   relate  to  cases  in  which  the  im- 
(  peached  instrument  had  been  delivered  on  condition  to  a  co- 
'' obligor  or  to  a  third  party  ;  and  it  will  be  found  that  in  most 
'of  these  decisions  it  is  incidentally  admitted  that  such  a  delivery 
cannot  be  made  to  an  oblig£e.     An  exception   to  such  current 
of  authority  is  certainly  to  be  found  in   the  remarks  of  Camp- 
bell, J.,  in  the  case  of  People  v.  Bostwick,  32   N.  Y.  445,  to  the 
effect  that  the  rule  that  a  deed  cannot  be  delivered  as  an  escrow 
to   the  party  who  takes  the  interest  under  it,  has  application 
onlyto  the  case  of  a  deed  of  conveyance,  and  that  it  is  such  a 
deed  alone  that  cannot  be  delivered   to  the  grantee  on  condi- 
tion, the  reason  being  that  in  such  case  the  estate  vests,  "  which 
cannot  be  divested  except  by  due  process  of  law  or  by  the  vol- 
untary execution  of  a  deed  by  the  grantee  ;"  but  there  seems 
to  be  no  reason  to  believe  that  this  novel  view  was  the  ground 
on  which  the  decision  of  the  Court  was  rested,  for  Denio,  C.J., 
in  the  expression  of  his  conclusions,  without  noticing  the  theory 
of  his  learned  colleague,  adheres  to  the  accepted  doctrine,  and 
says,    "  certain  principles  are  very  well  established  ;  where   a 
deed  is  delivered  to  a  party  who  is  the  obligee  or  covenantee, 
it  is  impossible  to  annex  a  condition  to  such  delivery."     Nor  is 
it  easy  to  understand  why  the  grantee  in  a  deed  cannot  receive 
such  deed  in  escrow,  if  he  can  hold  a  bond  under  such  circum- 
stances, because,  granting  the  capaci,ty  to  become  the  deposi- 


SEC.  II.]  ORDINARY    OF   N.  J.  f.  THATCHKR   if   a/.  727 

tary  of  an  escrow,  it  seems  clear  that  by  the  conditional  delivery 
of  a  conveyance  to  him  the  estate  would  not  vest  until  the  per- 
formance of  the  condition,  any  more  than  it  would  if  such  de- 
livery were  to  a  third  person.  But,  independent  of  such  con- 
siderations, it  seems  to  me  quite  out  of  the  question,  at  this 
late  day,  to  sanction  a  suggestion  that  stands  in  opposition  to 
so  much  authority  from  the  epoch  of  the  Year  Books  to  the 
present  time. 

I  conclude,  then,  under  this  first  head,  that  the  deed  in  ques- 
tion was  delivered,  in  legal  contemplation,  to  the  obligee  in 
person,  and  that,  consequently,  it  was  not  possible  to  attach 
any  condition  to  such  an  act.  Nor  do  I  think  that  in  answer 
to  this  it  will  suffice  to  urge,  as  is  urged,  that  the  delivery  was 
not  complete,  because  such  a  contention  is  obviously  in  the 
face  of  the  facts.  These  sureties  left  this  instrument  in  a  com- 
pleted form,  so  far  as  they  thenjselves  were  concerned,  with  the 
surrogate,  and  they  were  to  do  no  other  act  in  regard  to  it  ; 
and,  consequently,  if  the  deed  was  not  then  delivered  by  them, 
they  had  no  intention  to  deliver  it.  The  true  theory  is,  that  a 
deed  is  delivered  whenever  it  is  intended  that  it  shall  go  into 
effect  by  virtue  of  such  delivery,  without  further  act  on  the 
part  of  the  party  making  the  transfer.  For  the  [)urpose  of  this 
part  of  the  inquisition,  I  assume  that  these  sureties  delivered 
this  instrument  to  the  surrogate,  intending  to  deliver  it,  as  they 
say,  as  an  escrotu,  and  using  words  expressive  of  such  purpose  ; 
and  from  these  premises  I  have  concluded  that  the  bond,  by 
force  of  an  imperative  rule  of  law,  passed  to  the  obligee,  de- 
tached from  all  extraneous  conditions.  The  bond  cannot,  not- 
withstanding such  expressed  conditions,  be  treated  as  an  escrow 
in  the  hands  of  such  obligee. 

In  order  to  estimate  fully  the  force  of  this  position,  it  is  nec- 
essary to  bear  in  mind  that  the  deed  in  question  was,  with  re- 
spect to  its  legal  effect,  a  perfect  deed,  so  far  forth  as  the 
defendants  were  concerned.  The  deed,  it  is  true,  nominated 
in  its  premises  another  person  as  an  obligor,  besides  th-e  parties 
signing  in  that  capacity,  but  this  did  not  make  it  less  the  fin- 
ished act  of  those  who  did  execute  it.  No  one  will  pretend 
that  if  the  signers  of  this  deed  had  delivered  it  to  the  surrogate 
in  its  present  state,  without  annexing  any  condition  to  its  tradi- 
tion, that  it  would  not  have  been  binding  in  law.  The  de- 
cisions are  uniform  and  numerous  to  that  effect.  The  fact  of 
the  absence  of  the  signature  of  a  party  named  has  no  legal  sig- 
nificance, except  that  it  may,  as  a  circumstance,  tend  to  con- 
firm, in  a  proper  case,  the  contention  that  the  deed  was  deliv- 
ered  in  escrow,  or  may  serve  to  put  an  obligee   on   his  guard 


72\ 


ORDINARY    OF   X.  J.  V.  THATCHER   et   al.      [CHAP.  II. 


when  he  receives  the  instrument  from  the  hands  of  the  principal 
obligor,  or  of  a  third  party,  as  to  the  authority  of  such  agent 
to  make  delivery  to  him.  In  all  other  respects,  the  fact  that 
the  deed  has  not  been  signed  by  some  of  the  persons  named  in 
it  as  obligors  cannot  impair  the  obligatory  force  of  the  specialty 
with  regard  to  the  persons  executing  it. 

Before  leaving  the  subject,  I  also  remark  that  the  rule  which 
is  above  applied  in  this  case  is  not,  in  my  judgment,  by  any 
means  a  merely  technical  one.  To  the  contrary,  I  regard  it  as 
a  wise  regulation,  founded  in  public  utility,  and  conducing 
greatly  to  the  security  of  persons  desirous  of  executing  con- 
tracts in  a  definite  and  assured  form.  The  law  reasonably  pro- 
1  I'vides  that  the  instrument  delivered  shall  be  conclusive,  with 
respect  to  its  contents,  as  to  the  intention  of  the  parties  to  it  ; 
and  in  the  same  manner,  and  in  view  of  the  same  considerations, 
the  act  of  delivering  the  instrument  should  be  equally  conclu- 
sive. The  danger  to  be  apprehended  from  fraud  and  false 
swearing,  as  well  as  from  the  infirmity  of  human  memory, 
would  be  as  great  in  the  one  case  as  in  the  other.  If  a  condi- 
tion could  be  annexed  to  a  delivery  of  a  deed  when  made  to  the 
obligee  himself,  the  very  essence  of  the  transaction  would  be 
left  to  depend  on  the  memory  and  truth  of  the  bystanders.  I 
cannot  but  think  that  there  is  manifest  wisdom  in  the  old  rule, 
that  the  law  will  regard  in  such  transactions  not  what  is  said 
but  what  is  done.  Nor  does  it  seem  to  me  that  such  rule  is 
ever,  in  any  of  its  manifold  applications,  of  more  worth  than 
when  it  is  employed  as  a  safeguard  to  persons  who  are  of  neces- 
sity represented  by  public  officers.  It  must  strike  every  one  as 
a  most  alarming  idea,  that  any  of  the  numerous  bonds  that  are 
given  to  surrogates  and  clerks  can  be  defeated  if  it  can  be  made 
'to  appear,  by  parol,  that  any  of  the  parties  executing  and  de- 
I'livering  such  instruments  stated  to  such  officers  receiving  it  that 
it  was  to  be  inefficacious  unless  upon  the  happening  of  some 
event.  This  present  case  would  afford  a  fair  illustration  of  the 
practical  operation  of  such  a  pernicious  principle.  These  par- 
ties themselves  delivered  this  instrument  into  the  hands  of  the 
surrogate,  as  a  security  of  the  estate  of  this  infant  ;  the  surro- 
gate, after  it  had  been  duly  approved  by  the  Court,  filed  it  in 
his  office  ;  and  now  after  the  lapse  of  many  years,  when  it 
becomes  necessary  to  resort  to  it,  the  property  of  the  minor 
having  been  wasted  by  the  guardian,  the  endeavor  is  to  ex- 
plode the  entire  transaction  by  showing,  by  the  oaths  of 
the  parties  interested,  that  the  instrument  is  a  nullity,  as  it 
was  delivered,  subject  to  a  condition  that  has  not  been  ful- 
filled.    In    my   judgment,  law  and  public  policy  are  in  accord 


SEC.  II.]  ORDIXAKV    OF    X.  J.  7'.  THATCllKK    ft   <?/.  729 

on  this  subject,  both  dcchiring  that  such  a  (h-fcncc  cannot 
prevail. 

There  is  a  second  aspect  of  tliis  case,  but  wliich  also  appears 
to  me  equally  unfavorable  to  the  pretensions  of  these  defend- 
ants, for,  on  the  assumption  of  the  capability  of  the  surrogate 
to  receive  a  bond  in  escrow,  I  think  it  plain  that  the  legal  infer- 
ence from  the  facts  found  by  this  special  verdict  must  be  that 
no  such  delivery  was,  in' point  of  fact,  made. 

In  disposing  of  this  point,  I  premise  that  I  admit,  to  its  full 
extent,  the  rule  of  exposition  that  was  adopted  in  the  case  of 
Evans  v.  State  Bank,  and  which  was  reiterated  in  Lamb  v. 
Shreve,  that  the  question  whether  any  given  delivery  is  condi- 
tional or  not,  is  to  be  decided,  not,  as  was  at  one  time  supposed, 
by  a  mere  form  of  words  or  turn  of  expression,  but  from  the 
intention  of  the  parties,  as  manifested  by  their  language  and 
acts.  As  Sugden,  C,  said,  in  the  case  of  Nash  v.  Flyn, 
I  Jones  &  La  Touche,  162,  "  now  it  is  quite  settled  that  it  is 
not  necessary,  in  delivering  an  instrument  as  an  escrow^  to  say 
that  it  is  delivered  as  an  escroiv.  I  have  always  considered  it 
as  a  clear  point,  that  if  the  instrument  be  delivered  upon  con- 
dition, that  constitutes  an  escroiu.''  This  is  undoubtedly  the 
reasonable  and  modern  rule  of  construction  applicable  to  these 
transactions.  Nevertheless,  in  handling  this  question  at  the 
present  time,  there  are  two  considerations  which  we  must  carry 
with  us,  the  first  being  that  we  have  to  do  with  a  special  ver- 
dict, and,  in  the  second  place,  that  we  must  find,  in  order  to 
make  the  defence  available,  that  the  delivery  was  conditioned 
with  a  stipulation  that  the  instrument  should  not  go  into  effect 
unless  a  certain  act  should  be  performed. 

This  verdict  has  not  found  the  point,  that  the  transfer  of  the 
deed  was  subject  to  any  terms  ;  all  that  it  does  is  to  ascertain 
certain  facts,  and  the  inquiry,  therefore,  is  as  to  tlie  legal  value 
and  effect  of  such  facts.  In  the  exposition  of  findings  of  this 
character,  the  rule  is  that  when  the  facts  found  are  of  such  a 
nature  that  clear  conclusions  can  be  drawn  from  them,  it  is  no 
objection  to  the  finding  that  the  jurors  themselves  have  not 
drawn  such  conclusions  and  stated  them  as  facts.  This  is  the 
theory  denoted  by  Dallas,  C.J.,  in  Monkhouse  v.  Hay,  8  Price, 
256,  and  is  in  accordance  with  the  practice  in  such  cases  as 
appears  from  Mr.  Tidd's  Manual,  p.  897.  If  the  circumstances 
presented  have  so  uncertain  a  tendency  as  to  le^ive  the  mind  in 
doubt  as  to  their  legal  effect,  then  indeed  the  Court  cannot 
make  any  deduction.  Bearing  in  mind,  then,  the  twofold  office 
to  be  performed — viz.,  that  a  conditional  delivery  must  be  found, 
and   that  only  necessary  conclusions  are  to  be  deduced  from 


730  OPDIXARY   OF   N.  J.  V.  THATCHER  Ct  al.      [cHAP.  II. 

established  facts,  I  will  turn  to  the  merits  of  this  case  as  they 
are  spread  upon  this  record.' 
I  Now  this  testimony,  as  I  construe  it,  shows  this  and  nothing 
)  more,  that  both  these  sureties  who  signed  this  bond  believed 
j  that  it  would  be  signed  by  the  third  surety,  and  they  had  the 
'  promise  of  the  principal  obligor  that  he  would  procure  the  sig- 
•  nature  of  such  third  surety.  But  such  belief,  founded  on  such 
promise,  does  not  manifest  or  constitute  a  conditional  delivery 
of  the  instrument.  Neither  of  these  sureties  intimated  by  word 
or  act  that  in  case  of  the  failure  of  the  other  party  to  sign,  the 
bond  was  to  be  inefficacious  with  respect  to  himself.  Whether 
either  of  them  would  have  said  so  if  the  question  had  been  pro- 
pounded at  the  time,  is  a  matter  left  in  the  utmost  uncertainty. 
Now  each  says,  and  no  doubt  is  fully  convinced,  that  he  would 
not  have  agreed  to  execute  the  obligation  without  this  third 
party  assuming  a  share  of  the  risk  ;  but  who  can  say  confidently 
that  such  was  his  opinion  or  intention  at  the  time  of  the  trans- 
action ?  And  even  if  we  were  satisfied  that  such  at  the  time 
was  their  intention,  we  must  remember  that  the  existence  of 
such  intention  alone  would  not  absolve  them  from  this  obliga- 
tion, for  it  must  also  appear  that  such  intention  was  manifested 
to  the  officer  receiving  the  bond.  Was  the  surrogate  then  given 
to  understand  that  unless  the  third  signature  was  obtained  the 
bond  was  to  be  a  nullity  ?  In  order  to  conceive  clearly  the 
point  of  inquiry,  it  is  necessary  to  bear  in  mind  that  a  promise 
of  the  principal  obligor  to  do  some  act  in  the  future  as  an  in- 
ducement to  the  surety  to  sign,  and  the  non-fulfilment  of  such 
promise,  will  not  in  the  least  degree  impair  the  validity  of  the 
obligation  deliveied  in  reliance  on  such  promise.  To  have  such 
effect  it  is  requisite  that  it  should  be  stipulated  that  the  bond  is 
not  to  come  into  existence  as  an  obligation  until  the  perform- 
ance of  such  promise.  The  correct  doctrine  on  this  subject  is 
stated  perspicuously  by  the  Court  in  the  case  of  Evans  v.  Gibbs, 
6  Humph.  405,  in  these  words  :  "It  is  incumbent  on  him  who 
alleges  it  [the  deed]  to  be  an  escrow  merely,  and  not  his  deed, 
to  prove  affirmatively,  not  that  the  principal  promised  some- 
thing further  should  be  done,  by  way  of  inducement  to  his  exe- 
cution of  the  instrument,  but  that  the  performance  of  such 
further  act  was  the  condition  upon  which  he  was  to  become 
bound,  or  the  instrument  to  be  delivered  as  his  act  and  deed." 
■  In  the  case  in  hand,  the  principal  obligor  promised  the  sureties 
to  bring  in  the  third  bondsman  to  sign,  but  plainly  neither  of 
such  executing  sureties  made  the  performance  of  that  promise 
/  the  condition  on  which  he  was  to  become  bound.  To  the  same 
'  The  recital  of  facts  has  been  omitted. — Ed. 


SEC.  II.]  ORDINAKV    OF    N.  J.  7'.  THATCIIKR    ft    al.  731 

purpose  is  the  case  of  Cumberlege  :'.  Lawson,  40  E.  L.  &  Eq. 
22S,  in  which  the  defendant  pleaded  tliat  "  he  executeil  ilie 
indenture  on  the  faith  that  P.  (one  of  the  sureties)  should  join 
therein,  and  who  never  did  execute  it  ;"  the  Court  holdinu:  the 
plea  bad,  Cresswell,  J.,  saying  :  "  The  defendant  does  not  say 
that  he  never  did  seal  and  deliver  ;  nor  that  he  delivered  the 
deed  as  an  escrow,  on  condition  that  P.  should  execute  it."  And 
in  Bowker  z;.  Burdekin,  11  M.  &  W.  127,  it  is  similarly  obvious 
that  the  deed  was  executed  under  the  inHuence  of  the  same  kind 
of  inducement,  because  in  that  case  the  deed  of  assignment,  in 
its  body,  purported  to  be  the  deed  of  three  members  of  a  firm, 
and  to  convey  all  their  personal  estate  in  trust  for  creditors  ; 
but  the  contention  that  the  instrument  was  delivered  as  an 
escrotv  was  rejected,  Parke,  B.,  remarking  :  "  It  seems  probable 
the  partners  contemplated  that  the  other  partners  should  exe- 
cute the  deed,  but,  in  the  mean  time,  this  party  has  set  his  seal 
and  delivered  the  deed  as  an  instrument  which  conveys  all  the 
property  he  has."  That  the  mere  expectation,  or  well-founded 
belief  of  the  party  signing,  that  another  party  will  sign,  will 
not  make  a  delivery  by  the  former  conditional  on  an  execution 
by  the  latter,  appears  also  from  that  numerous  line  of  cases  in 
which  deeds  have  been  pronounced  valid  which,  upon  their 
face,  manifest  that  it  was  expected  that  other  parties  siiould 
sign.  Duncan  v.  United  States,  7  Pet.  435,  and  Cutter  v. 
Whittemore,  10  Mass.  442,  are  leading  cases  of  that  class,  and 
they  aie  founded  on  the  radical  distinction  which  exists  between 
an  understanding,  contemporaneous  with  the  delivery  of  a  deed, 
that  something  further  is  to  be  done  as  a  part  of  the  transac- 
tion, and  an  understanding  that  the  doing  of  such  thing  is  to 
be  a  prerequisite  to  the  legal  existence  of  the  instrument. 
Williamson,  C,  has  clearly  discriminated  in  this  respect,  in  the 
opinion  read  by  him  in  the  case  of  Black  v.  Lamb,  i  Beas.  iiS, 
where  he  says  :  "  There  is  a  manifest  difference  where  tiie  testi- 
mony is  offered  for  the  purpose  of  showing  that  the  writing  was 
not  to  be  delivered  until  a  condition  precedent  was  performed, 
and  that  it  was  delivered  with  an  agreement  that  the  condition 
was  to  be  performed."  In  the  present  case,  as  presented  in 
this  record,  I  can  find  no  facts  from  which,  as  a  matter  of  rea- 
sonable certainty,  an  inference  can  be  drawn  that  there  was  an 
understanding  that  the  present  bond  should  have  no  legal  effect 
until  the  signature  of  the  third  surety  should  Kd''e  been  ob- 
tained. Nor  can  I  think  that,  in  transactions  of  thi^  kind,  if  it 
is  to  be  held  that  the  surrogate  can  stand  as  the  depositary  of 
an  escrow,  the  law  should  be  satisfied  with  anything  short  of  the 
most  convincing  proof  that  the  transfer  of  tlie  instrument  to  the 


I 


732 


ORDINARY   OF   N.  J.  V.  THATCHER   r/  a/,      [chap.  II. 


Ui 


official  hand  was  conditional.  It  is  easy  for  the  party  to  speak 
plainly  on  the  subject,  if  such  is  his  intention,  and  in  an  affair 
involving  the  estates  of  persons  who,  from  the  immaturity  of 
their  minds,  are  incapable  of  taking  care  of  their  own  concerns, 
he  is  bound  to  do  so.  The  passing  of  an  instrument  into  the 
possession  of  the  party  taking  an  interest  under  it,  is  an  act  so 
significant  of  the  right  of  such  recipient  to  take  and  enforce  it 
according  to  its  terms,  that  to  control  such  manifestation,  cir- 
cumstances or  expressions  amounting  almost  to  demonstration 
should,  in  my  opinion,  in  all  cases  be  exacted.  There  is  no 
reason  to  believe  that  if,  in  the  present  instance,  these  defend- 
ants had  in  any  intelligible  manner  intimated  to  the  surrogate 
that  they  were  not  to  be  bound  by  this  bond  until  it  was  exe- 
cuted by  the  other  surety,  that  it  would  ever  have  been  made 
use  of  or  tendered  for  judicial  sanction.  The  consequence  is, 
that  if  the  matter  is  left  in  doubt  as  to  the  character  of  the 
delivery  of  this  instrument,  such  doubt  should  be  resolved  in 
favor  of  the  innocent  person,  to  secure  whom  the  bond  was 
given,  rather  than  to  the  advantage  of  these  defendants,  whose 
carelessness  has  at  all  events  produced  the  situation. 

The  cases  cited  in  the  brief  of  the  counsel  for  the  defence 
have  been  carefully  examined  and  considered,  but  most  of  them 
appear  not  to  be  upon  the  point  where  the  stress  of  the  case 
lies,  for  they  relate  to  the  effect  of  deeds  left  in  the  hands  of  a 
co-obligor,  or  of  a  third  party,  to  be  vitalized  on  the  perform- 
ance of  a  condition  clearly  expressed.  Pawling  v.  United  States, 
4  Cranch,  219  ;  Ward  v.  Churn,  18  Grattan,  801,  and  a  large 
number  of  others,  which  are  referred  to,  do  not  differ  in  any 
material  degree  from  that  of  Evans  v.  State  Bank,  which  rests 
upon  incontestable  law.  The  decision  in  Fletcher  v.  Leight, 
4  Bush  (Ky.),  303,  is  nothing  but  the  exposition  of  a  local 
statute,  and  Clements  v.  Cassilly,  4  La.  An.  380,  is  an  offshoot 
of  the  civil  and  not  of  the  common  law.  The  case  of  Sharp  v. 
United  States,  4  Watts,  21,  is  more  pertinent,  but  appears  to 
have  been  decided  upon  little  consideration,  as  none  of  the 
authorities  are  referred  to,  and  the  decision  is  put  upon  a  prin- 
ciple that  is  inconsistent  with  almost  all  the  authorities  upon 
this  subject.  With  respect  to  the  case  of  Evans  v.  Bremridge, 
8  De  G.,  M.  &  G.  100,  which  seems  to  have  been  much  relied 
on,  as  it  is  referred  to  several  times,  it  is  a  judgment  plainly 
adverse  to  the  defence,  as  the  instrument  then  in  question  was 
admitted  to  be  good  at  law,  as  appears  by  the  report  of  the  case 
in  2  Kay  &  Johns.  174,  where  Wood,  V.C.,  is  recorded  as  say- 
ing :  "  So  here  the  deed  is  good  at  law.  Not  having  delivered 
the  deed  upon  condition  of  its  being  executed  by  the  co-surety, 


SEC.  II.]  BLEWITT   7'.    BOORUM    il    al.  733 

the  plaintiff  is  bound  at  law  to  pay  the  amount  ;  but  the  ques- 
tion is,  What  is  its  effect  in  equity  ?"  It  is  true  that  in  thai 
case,  which  arose  on  a  bill  in  chancery,  relief  was  afforded 
founded  on  grounds  that  do  not  seem  to  be  present  on  this  occa- 
sion ;  but  with  such  equities,  it  is  obvious,  at  this  time  we  have 
no  concern. 

With  respect  also  to  the  fact  adverted  to  by  counsel,  that  this 
bond  was  executed  in  view  of  the  order  of  the  Orphans'  Court 
sanctioning  a  bond  by  three  named  sureties,  it  does  not  appear 
to  me  to  be  a  circumstance  having  any  legal  force.  The  Court 
certainly,  by  reason  of  such  direction,  was  not  precluded  from 
changing  its  purpose,  or  from  accepting  a  bond  signed  by  a 
lesser  number  of  sureties  ;  nor  could  the  existence  of  such  orig- 
inal order  qualify  in  any  measure  the  act  of  these  defendants 
in  making  delivery  of  this  instrument  ;  such  order,  as  part  of 
the  transaction,  may  indeed  tend  to  show  what  they  expected 
would  be  done,  but  it  does  not  help  to  explain  what  in  point  of 
fact  they  themselves  did. 

I  think  the  plaintiff  is  entitled  to  judgment  on  this  special 
verdict. 


ALFRED    BLEWITT,    Appellant,    v.    WILLIAM    B. 
BOORUM  ET  AL.,   Respondents. 

In  the  Court  of  Appeals  of  New  York,  May   i,  1894. 
[Reported  in  142  New  York  Reports  357.  J 

Appeal  from  judgment  of  the  General  Term  of  the  Superior 
Court  of  the  city  of  New  York,  entered  upon  an  order  made 
April  6th,  1891,  which  affirmed  a  judgment  in  favor  of  defend- 
ants entered  upon  a  decision  of  the  Court  on  trial  at  Special 
Term  dismissing  the  complaint. 

The  nature  of  the  action  and  the  facts,  so  far  as  material,  are 
stated  in  the  opinion. 

Isaac  yV.  Miller  for  appellant. 

James  L.  Bishop  for  respondent. 

Peckham,  J.  This  action  was  brought  to  obtain  an  account- 
ing from  defendants  and  for  damages  sustained  by  plaintiff  by 
reason  of  the  violation  of  a  certain  contract,  under  seal,  entered 
into  between  ihe  parties  to  the  action  in  relation  to  the  right  to 
manufacture  and  sell  a  temporary  kind  of  binder  for  books, 
called  the  "  Common  Sense  Binder,"  and  for  which  letters 
patent  had  been  issued. 


734  BLEWITT  t'.   BOORUM   ft  al.  [chap.  ii. 

The  defendants  admitted  the  execution  of  the  contract,  but 
alleged  that  it  had  been  executed  upon  the  parol  condition  that 
it  was  not  to  operate  as  a  contract  until  the  plaintiff  acquired 
the  interest  of  a  third  person  in  the  patent  spoken  of  in  the 
agreement,  and  it  was  alleged  that  the  plaintiff  had  never  per- 
formed the  condition.  Evidence  showing  that  the  contract  was 
executed  with  the  condition  above  stated,  and  that  the  condi- 
tion had  never  been  performed,  was  offered  upon  the  trial  and 
received  by  the  Court,  under  proper  objection  and  exception 
on  the  part  of  the  plaintiff,  and,  after  the  evidence  was  in,  the 
Court  found  the  fact  in  accordance  with  defendants'  contention 
and  gave  judgment  dismissing  the  complaint,  which  was  affirmed 
at  the  General  Term,  and  from  such  affirmance  the  plaintiff  has 
appealed  to  this  Court. 

The  case  of  Reynolds  v.  Robinson,  no  N.  Y.  654,  holds  that 
a  writing  which  is  in  form  a  complete  contract,  and  which  has 
been  delivered,  may  be  proved  to  have  been  delivered  upon  a 
Iparol  condition  that  it  was  not  to  become  a  binding  contract 
until  the  happening  of  some  event  in  the  future,  and  that  such 
'event  had  not  occurred.  The  cases  cited  in  the  brief  opinion 
fully  bear  out  the  statement. 

The  plaintiff  here  contends  that  the  authority  of  that  case 
must  be  confined  to  contracts  which  are  not  under  seal,  and,  as 
the  contract  here  was  a  sealed  one,  the  case  has  no  application. 

Of  course  the  mere  presence  or  absence  of  a  seal  upon  a  writ- 
ing would  seem  to  be  a  matter  of  the  smallest  importance  upon 
the  question  now  under  consideration.  The  same  reasons  would 
apply  with  equal  force  for  receiving  or  rejecting  the  contem- 
poraneous parol  understanding  where  the  writing  was  sealed, 
as  where  the  seal  was  absent.  It  is  a  question  in  each  case  as 
to  whether  there  has  or  has  not  been  an  executed  and  com- 
pleted agreement  or  act.  Many  of  the  old  English  cases  held 
the  doctrine  that  where  there  was  a  writing  bearing  upon  its 
face  the  marks  that  it  was  fully  and  completely  executed,  if 
there  were  a  delivery  of  the  writing  to  the  party  himself,  there 
could  be  no  parol  evidence  that  the  delivery  was  upon  a  condi- 
tion or  in  escroiv.  The  reason  assigned  in  many  cases  was  that 
such  evidence  would  lead  to  the  result  that  a  bare  averment 
without  any  writing  would  make  void  every  deed.  The  word 
deed  was  not  used  in  its  restricted  sense  of  a  written  instrument 
conveying  land,  or  some  interest  therein,  but  in  the  sense  that 
it  was  a  writing  of  the  party,  and  hence  his  act  or  deed.  In 
Williams  v.  Green,  i  Croke's  Eliz.  884,  the  action  was  one  of 
debt  on  a  bill.  There  was  no  seal  attached.  The  plea  was 
that  the  bill   had  been  delivered   to  the  plaintiff  as  a  schedule 


SFX.  II.]  r.I.EWITT   V.    liOOKUM    .Y   tj/.  735 

(a  memorandum),  upon  condition  tliat  if  plaintiff  delivered  to 
defendant  a  horse  upon  a  certain  day,  then  the  schedule  was  to 
be  his  deed,  otherwise  not,  and  that  plaintiff  had  not  delivered 
the  horse.  The  plaintiff  demurred  to  the  plea,  and  it  was  re- 
solved by  the  whole  Court  to  be  a  bad  plea,  for  a  deed  could 
not  be  delivered  to  the  party  himself  as  an  escnmi,  because  thenj 
a  bare  averment  without  any  writing  would  make  void  any' 
deed.  The  decision  was  not  based  upon  the  question  of  a  seal, 
and  the  paper  was  referred  to  as  a  deed  simply  by  wa}'  of  de- 
scription of  an  act  of  the  party  in  delivering  a  written  instru- 
ment which  ought  not  to  be  rendered  void  by  a  parol  contem-  ' 
poraneous  understanding  or  agreement.  The  reason  would 
apply  with  equal  force  to  all  written  instruments,  sealed  or 
unsealed.  Other  cases  of  a  nature  where  the  writings  needed 
not  to  have  been  under  seal,  and  where  it  was  held  that  they 
could  not  be  delivered  conditionally  to  the  party  to  the  instru- 
ment, are  cited  in  2  Coke  upon  Lyttleton,  276  (Philadelphia  ed., 
1827  ;  ist  Am.  from  last  London  ed.).  On  the  other  hand, 
there  is  one  case  which  decided  that  a  writing  obligatory  could 
be  delivered  in  escrow  to  the  obligee  (Hawksland  v.  Catchel, 
I  Croke  Eliz.  835),  but  after  differences  of  opinion  among  the 
judges  it  was  finally  resolved  otherwise  in  later  cases,  as  stated 
in  Coke  {siipra). 

These  cases  show  that  the  rule  preventing  parol  evidence  of 
a  delivery  to  the  party  upon  condition,  was  not  founded  upon 
the  presence  of  a  seal  to  the  writing,  but  the  rule  was  adopted 
because  when  the  words  were  contrary  to  the  act  (of  delivery), 
the  words  were  regarded  as  of  no  effect,  for  it  was  not  what 
was  said,  but  what  was  done,  that  was  in  such  case  to  be  re- 
garded. Hence,  a  delivery  to  a  party  was  said  to  be  incon- 
sistent with  any  condition  attached  to  it,  and  a  condition  was, 
in  fact,  a  contradiction  of  the  writing,  and  parol  evidence  of 
the  condition  was,  therefore,  inadmissible.  A  different  view 
was  subsequently  taken  of  this  act  of  delivery.  The  courts  said 
it  was  not  a  contradiction  of  the  terms  or  legal  effect  of  the 
writing,  but  it  was  proof  simply  that  no  contract  had,  in  fact, 
been  entered  into.  They  said  that  the  production  of  a  writing 
purporting  to  be  an  agreement  by  a  party,  with  his  signature 
attached,  afforded  a  strong  presumption  that  it  was  his  written 
agreement,  but  if  at  the  time  the  parties  agreed  that  the  writing 
was  not  to  take  effect  as  an  agreement  until  the  happening  of 
some  event,  in  other  words,  that  it  was  agreed  upon  condition- 
ally, then  it  should  not  take  effect  until  the  happening  of  the 
event  or  the  fulfilment  of  the  condition.  Pym  v.  Campbell, 
6  Ellis  &  Black,   370  ;  S.   C,  88  Eng.   Com,   L.  370.     Cromp- 


'jl'^  BLEWITT  V.    BOORUM   et  al.  [chap.  II. 

ton,  J.,  in  the  above  case,  in  speaking  of  an  instrunaent  under 
(  seal,  said  it  could  not  be  a  deed  until  there  was  a  delivery,  and 
when  there  was  a  delivery  that  estops  the  parties  to  the  deed, 
(  which  was  a  technical  reason  why  a  deed  could  not  be  delivered 
•  as  an  escrmo  to  the  other  party.  He  said  the  parties  may  not 
I  vary  a  written  agreement,  but  they  may  show  that  they  never 
came  to  an  agreement  at  all,  and  that  the  signed  paper  was 
'  never  intended  to  be  the  record  of  the  terms  of  the  agreement, 
for  they  never  had  agreeing  minds.  In  truth,  however,  the 
Court  of  Exchequer  in  Bowker  v.  Burdekin,  ii  M.  &  W.  128, 
had  already  distinctly  stated  that  a  delivery  of  a  deed  to  a  party 
might  be  in  escrow,  even  though  the  condition  were  not  in  ex- 
press words,  if  from  the  circumstances  attending  its  execution 
lit  could  be  inferred  that  it  was  not  delivered  to  take  effect  as  a 
•deed  until  a  certain  condition  were  performed.  Parke,  B., 
said  in  that  case  it  was  now  settled  law,  though  it  was  other- 
wise in  ancient  times,  that  in  order  to  constitute  the  delivery  of 
'a  writing  as  an  escrow,  it  was  not  necessary  that  it  should  be 
done  by  express  words,  but  you  are  to  look  at  all  the  facts 
attending  the  execution,  and  though  in  form  it  was  an  absolute 
delivery,  if  it  can  be  reasonably  inferred  that  it  was  delivered 
not  to  take  effect  as  a  deed  till  a  certain  condition  was  pei- 
;■  formed,  it  will  still  operate  as  an  escrow.  The  deed  was  in  that 
case  delivered  to  the  party  who  was  to  take  a  benefit  under  it, 
and  while  the  Court  held  it  was,  in  fact,  an  absolute  delivery, 
the  learned  judges  admitted  that  it  might  have  been  delivered 
conditionally  to  a  party,  and,  if  so,  it  would  not  take  effect 
until  condition  performed.  And  in  Gudgen  v.  Besset,  6  Ellis  & 
Bl.  986,  the  lease  of  premises  for  a  term  of  years  was  signed, 
sealed,  and  delivered  to  the  party,  although  after  such  delivery 
the  grantor  retained  the  lease  in  his  possession.  The  agree- 
ment was  that  it  was  not  to  take  effect  until  lessee  paid  ;^ioo, 
;£'-^o  only  being  then  paid.  The  Court  from  all  the  facts  in  the 
case  held  that  the  clear  inference  was  that  the  instrument  should 
not  operate  as  a  lease  until  full  payment,  and  if  there  were  such 
an  agreement,  though  no  express  words  of  delivery  as  an 
escrow  were  used,  it  would  not  operate  as  a  deed  until  payment 
was  made,  and  consequently  the  lessee,  although  in  possession 
of  the  premises,  was  tenant  only  from  year  to  year,  and  not 
tenant  under  the  deed,  Campbell,  C.J.,  holding  that  the  formal- 
ity of  delivering  the  instrument  to  a  third  person  as  an  escrow 
was  not  essential  when  it  was  intended  to  operate  as  such. 
Looking  at  all  the  facts  the  learned  judge  said  it  must  have 
been  the  intention  of  the  parties  that  the  instrument  should  not 
operate  as  a  lease  till  the  money  was  paid,   and   that  neither 


SEC.  II.]  BLEWITT   V.    BOORUM    ft  al.  737 

partv  intended  iliat  tlie  interest  in  the  term  should  vest  till 
tlien. 

As  a  result  of  the  examination  of  the  English  authorities  I 
think  it  is  clear  that  the  presence  of  a  seal  on  a  writing  was  not 
the  reason  for  iiroliibiiing  parol  evidence  of  a  condition  attached 
to  a  delivery  to  a  party,  but  that  where  parol  evidence  was  dis- 
-allow^ed  it  was  on  the  theory  that  otherwise  it  would  be  ct)ntra- 
dicting  the  writing.  The  rule  was  overthrown  in  England  by 
the  cases  cited,  which  permit  parol  evidence  that  the  delivery 
of  a  writing,  although  under  seal,  may  be  shown  to  have  been 
under  an  agreement  that  it  was  not  to  operate  as  such  until  the 
happening  of  some  future  event. 

In  tiiis  State  in  Lovett  v.  Adams,  3  Wend.  380,  it  was  said  by 
Savage,  C.J.,  that  if  a  bond  be  signed  and  put  into  the  hands 
of  the  obligee  or  a  third  person  on  the  condition  that  it  shall 
become  obligatory  upon  the  performance  of  some  act  of  the 
obligee  or  any  other  person,  the  paper  signed  does  not  become 
the  bond  of  the  party  signing  the  same  until  the  condition 
precedent  shall  be  performed.  Until  then  there  is  no  contract. 
The  Court  held  that  evidence  of  such  facts  should  have  been 
admitted.  So  the  presence  of  a  seal  was  considered  no  obstacle 
to  parol  proof  that  the  writing  was  delivered  to  a  party  to  the 
instrument  upon  a  condition  which  had  not  been  performed. 
The  rule  in  this  State  regarding  deeds  conveying  real  estate,  or 
an  interest  therein,  or  agreements  for  the  sale  thereof,  is  that  a 
delivery  cannot  be  made  to  the  grantee  or  other  party  thereto 
■conditionall}^  or  as  is  said  in  escrow,  and  when  delivered  to  a 
party  the  delivery  operates  at  once  and  the  condition  is  unavail- 
able. Gilbert  v.  The  North  American  Fire  Ins.  Co.,  23  Wend. 
43  ;  Worrall  v.  Munn,  5  N.  Y.  229  ;  Braman  v.  Bingham, 
26  N.  Y.  483  ;  Wallace  v.  Berdell,  97  N.  Y.  13,  25. 

Whether  there  is  any  sound  basis  for  a  distinction  between 
<;ases  relating  to  real  estate  and  other  kinds  of  written  instru- 
ments, it  is  not  now  important  to  inquire,  for  the  rule  that  in- 
struments of  the  former  character  cannot  be  conditionally  de- 
livered to  a-  party  is  too  firmly  established  in  this  State  to  be 
overruled  or  even  questioned.  In  the  case  in  23d  Wend,  {supra) 
Bronson,  J.,  says  it  is  one  of  the  cases  in  which  the  law  fails 
to  give  effect  to  the  honest  intention  of  the  parties,  for  the 
reason  that  they  have  not  adopted  the  proper  legal  means  of 
accomplishing  their  object.  In  Arnold  v.  Patrick,  6  Pai. 
315,  the  writing  involved  was  a  deed  of  land,  and  the  re- 
mark of  the  chancellor,  that  the  rule  applied  to  any  sealed 
instrument,  was  beyond  the  question.  He  refers  as  authority 
for    his    statement     to    Thoroughgood's    Case,    9     Coke,     i37</, 


738  BLEWITT   V.    BOORUM    Ct   al,  [CHAP.  II. 

reported  in  Vol.  V.,  at  p.  241  of  the  London  ed.  of  Coke's 
Reports,  1826. 

The  writing  in  that  case  was  a  deed  conveying  lands,  but 
cases  are  referred  to  in  the  report  where  bonds  were  thus  deliv- 
ered, and  it  was  held  that  no  condition  could  be  attached  to  a 
delivery  to  a  party.  I  have  already  stated,  in  reviewing  the 
English  cases,  that  the  rule  was  not  founded  upon  the  presence 
of  a  seal,  but  because  the  delivery  could  not  be  contradicted  by 
parol  evidence  of  a  condition  attached  thereto.  Those  old 
English  cases  have  been  passed  over  and  substantially  over- 
ruled by  the  English  courts,  so  far  as  to  hold  that  the  delivery 
even  of  a  sealed  instrument  to  a  party  could  be  made  condition- 
ally. And  the  case  in  3d  Wend,  {supra)  shows  that  a  bond 
could  be  delivered  conditionally  to  a  party. 

In  Cocks  z'.  Barker,  49  N.  Y.  107,  parol  evidence  was  admitted 
to  show  that  the  bond  was  delivered  conditionally,  and  the  trial 
court  found  against  that  fact.  In  this  Court  it  was  stated  that 
the  evidence  was  not  admissible,  because  a  deed  could  not  be 
delivered  to  a  party  upon  condition,  citing  Worrall  v.  Munn 
and  Gilbert  v.  Ins.  Co.  {supra).  It  was  not  necessary  to  the 
decision,  and  I  think  the  doctrine  that  a  bond  could  not  thus 
be  delivered  is  not  borne  out  by  the  cases  in  this  State,  and 
certainly  not  by  the  later  cases  in  England  already  cited. 

But  a  bond  imports  the  existence  of  a  seal,  and  the  latter  is 
requisite  to  the  legal  existence  of  a  bond. 

The  mstrument  in  this  case  was  an  ordinary  agreement,  not 
(  requiring  a  seal  for  its  validity,  and  we  think  the  rule  as  to 
sealed  instruments,  however  far  it  may  be  carried  in  regard  to 
\  such  instruments  as  require  a  seal  for  their  validity,  should  not 
'i  be  extended  in  any  event  to  those  cases  where  the  instrument 
'  is  in  law  not  in  the  nature  of  a  specialty,  and  where  the  pres- 
ence of  a  seal  is  totally  unnecessary  to  its  validity. 

I  think  myself  the  rule  should  not  extend  beyond  what  seems 
to  be  the  settled  law  in  this  State  in  regard  to  deeds  or  writings 
conveying  or  relating  to  the  conveyance  of  real  estate,  or  some 
interest  therein,  but  in  this  case  it  is  not  necessary  to  now  go 
further  than  to  hold  the  rule  inapplicable  to  an  instrument  not 
in  any  way  relating  to  or  affecting  real  estate,  and  which  does 
not  require  a  seal  for  its  validity,  the  seal  being  in  such  case 
and  for  this  purpose  regarded  as  surplusage,  and  the  instru- 
ment  should  be  held  to  come  within  the  rule  laid  down  in  Rey- 
nolds V.  Robinson,  no  N.  Y.  654,  already  cited. 

The  other  cases  cited  in  plaintiff's  brief  have  been  examined. 
With  the  exception  of  Van  Bokkelen  v.  Taylor,  62  N.  Y.  105, 
they   hold  simply  that    parol    evidence  of   a  contemporaneous 


SEC.  II.]  WEEKS   z:    MAILI.AKDET.  739 

parol  agreement,  outride  of  and  varying  the  terms  of  a  written 
contract,  is  not  admissible.  We  do  not  hold  the  contrary,  but 
simply  hold  the  parol  evidence  of  an  agreement  that  the  writing 
should  not  take  effect  upon  delivery  until  the  happening  of 
some  condition  is  admissible  in  such  a  case  as  this.  Van  Bok- 
kelen  7'.  Taylor  {supra)  was  a  case  of  a  composition  release  by 
creditors  of  a  common  debtor,  and  it  was  helii  that  evidence  of 
a  secret  condition  attached  to  the  e.xecution  or  delivery  of  the 
release  by  one  of  the  creditors  was  inadmissible,  as  such  an 
agreement  in  regard  to  a  composition  release  was  void  in  any 
event.     The  case  does  not  touch  the  question  here  involved. 

We  have  looked  througii  the  other  exceptions  set  forth  in  this 
record,  and  find  none  that  calls  upon  us  to  reverse  the  judg- 
ment, and  it  should,  therefore,  be  affirmed,  with  costs. 

All  concur. 

Judgment  affirmed. 


WEEKS  V.  MAILLARDET. 

In  the  King's  Bench,  Nove.mber  23,  181 1. 

\Reported  tn  14  East  56S.J 

By  an  agreement  under  the  hands  and  seals  of  these  parties, 
dated  London,  December  27th,  1809,  the  defendant  engaged  to 
deliver  up  to  the  plaintiff,  on  or  before  July  15th,  1810,  the 
whole  of  his  mechanical  pieces,  as  per  schedule  annexed  ;  all 
the  machineries  performing  and  in  good  order  as  when  first 
finished,  etc.;  and  further  to  show  to  the  plaintiff  everything 
that  he  might  want  to  know^  for  exhibiting  and  making  the  said 
pieces  perform.  And  on  the  day  the  defendant  delivers  the 
above  pieces,  as  herein  mentioned,  the  plaintiff  is  to  pay  the  de- 
fendant ^^  1000  in  money,  and  ^2000  in  his  notes,  etc.  (at  cer- 
tain dates).  "  And  it  is  further  agreed  that  upon  either  party 
not  complying  with  the  present  agreement,  the  defaulter  shall 
pay  to  the  other  party,  as  a  penalty,  ^1000  except  in  case  of 
fire,  etc.  And  it  is  further  agreed,  that  in  case  of  any  misun- 
derstanding between  the  parties,  it  is  to  be  settled  by  arbitra- 
tors chosen  by  themselves  in  the  usual  way."  This  was  wit- 
nessed at  the  time  of  the  execution  by  Gedeon  Patron.  There 
was  also  a  schedule  bearing  the  same  date,  and  witnessed  by 
the  same  person  (but  not  signed  by  the  parties  themselves), 
which  ran  in  these  terms  :  "  Schedule  of  the  several  pieces  of 
mechanism,  which  according  to  the  present  agreement  T.  Weeks 


740  WEEKS   V.    MAILLARDET.  [cHAP.  II. 

is  to  receive  from  H.  Maillardet, "  etc.;  and  then  followed  the 
description  of  the  several  pieces. 

The  plaintiff  declared  in  covenant  for  the  breach  of  the  above- 
stated  agreement,  which  was  set  out  in  the  declaration,  and 
then  followed  this  averment  :  "  And  the  plaintiff  further  saith, 
that  to  the  said  articles  was  then  and  there  annexed  and  sub- 
scribed a  certain  schedule  of  the  said  several  pieces  of  mechan- 
ism, which,  according  to  the  said  agreement,  the  plaintiff  was 
to  receive  from  the  defendant — viz.,"  etc.,  and  so  it  set  out  the 
list  as  contained  in  the  schedule.  And  then  it  assigned  as  a 
breach  of  the  agreement,  that  the  defendant  did  not  deliver  up 
to  the  plaintiff  on  or  before  July  15th,  1810  (then  past),  nor  at 
any  time  since,  the  whole  or  any  part  of  his  mechanical  pieces 
aforesaid,  but  wholly  neglected  and  refused  so  to  do,  whereby 
he  became  liable  to  pay  to  the  plaintiff  ^^looo,  etc. 

The  defendant,  after  craving  oyer  of  the  articles,  which,  in- 
cluding also  the  schedule,  was  read  to  him,  pleaded  that  the 
said  supposed  articles  of  agreement  are  not  his  deed.  There 
was  also  another  plea,  not  material  to  the  present  purpose,  that 
the  supposed  articles  were  delivered  to  G.  Patron  as  an  escrow, 
upon  a  condition  not  performed  ;  and  so  they  were  not  his 
deed,  and  another  plea,  that  they  were  obtained  from  the  de- 
fendant by  fraud.  Issues  were  joined  upon  all  these  pleas,  and 
at  the  trial  before  Lord  Ellenborough,  C.J.,  at  Westminster, 
all  matters  in  difference  in  the  cause  were  referred  to  the  arbi- 
tration of  a  gentleman  at  the  bar,  who  stated  all  these  matters 
in  his  award,  and  found  specially  that  on  the  day  of  the  date 
of  the  articles  of  agreement  the  plaintiff  and  defendant  met 
together  in  company  with  Gedeon  Patron,  whose  name  appears 
as  a  subscribing  witness  to  the  articles,  and  who  was  the  mutual 
friend  or  agent  both  of  the  plaintiff  and  defendant,  and  was 
privy  to  a  treaty  or  negotiation  which  had  been  going  on  for 
some  time  between  the  parties,  for  the  purchase  of  the  several 
things  mentioned  in  the  said  schedule,  and  who  was  then  in 
possession  of  a  list  or  inventory  of  the  said  things,  and  upon 
which  both  the  parties  had  previously  agreed  ;  and  that  at  such 
meeting  Gedeon  Patron  wrote  on  separate  sheets  of  paper  two 
parts  or  copies  of  so  much  of  the  articles  of  agreement  as  con- 
tain the  matter  of  agreement  or  covenant  between  the  parties 
beginning  with  the  words,  "  London,  on  this  27th  of  Decem- 
ber," and  ending  with  the  words,  "  In  witness  whereof  we  have 
signed  ;"  and  thereupon  each  of  the  parties  duly  signed  and 
sealed,  and  as  his  act  and  deed  delivered,  both  parts  or  copies 
of  the  said  paper  ;  and  the  defendant  took  up  from  the  table 
and  delivered  into  the  hands  of  the  plaintiff  the  part  or  copy 


SEC.  11.]  wep:ks  v.  maii.i  AKDirr.  741 

upon  which  the  plaintiff  declared,  and  the  plaintiff  in  like  man- 
ner took  up  and  delivered  into  the  hands  of  the  defendant  the 
other  part  cr  copy  ;  and  soon  afterward  the  plaintiff  put  into 
the  hands  of  Gedeon  Patron  the  said  part  or  copy  whicii  had 
been  so  delivered  to  him,  and  then  left  the  room  in  whicli  they 
had  met  ;  and  the  said  Gedeon  Patron,  as  the  agent  of  botli 
parties,  afterward  wrote  the  form  of  a  guarantee  and  also  the 
said  schedule  upon  both  parts  or  copies,  and  gave  back  to  the 
plaintiff  the  part  or  copy  that  he  had  received  from  him.  The 
arbitrator  further  found  and  awarded  that  each  of  the  parties, 
and  also  Gedeon  Patron,  supposed  the  subscription  of  tlie 
schedule  upon  the  papers  after  such  sealing  and  delivery  to  be 
of  the  same  force  and  effect  as  if  such  schedule  had  been  writ- 
ten thereon  before  they  sealed  and  delivered  the  same  ;  and 
that  the  schedule  agrees  in  every  respect  with  the  said  list  or 
inventory,  and  contains  all  the  things  which  the  parties  in- 
tended to  buy  and  sell  and  no  others.  And  then  he  awarded 
that  a  verdict  should  be  entered  for  the  plaintiff,  upon  all  the 
issues  joined  in  the  cause,  with  ^^350  damages,  but  that  no  exe- 
cution should  issue  thereon  until  the  fifth  day  of  (the  present) 
Michaelmas  Term,  which  was  meant  to  give  the  defendant  an 
opportunity  of  taking  the  opinion  of  the  Court  on  the  validity 
of  the  award,  in  point  of  law,  upon  a  motion  to  set  it  aside. 

This  was  accordingly  made  on  a  former  day  in  the  term, 
when  it  was  objected  by  Topping  that  the  schedule  was  no  part 
of  the  deed,  having  been  added  to  it  by  the  witness  after  the 
execution  and  delivery  of  the  instrument  by  the  parties  them- 
selves, and  even  after  one  of  them  had  left  the  room  ;  and  there- 
fore the  averment  that  the  schedule  was  then  and  there  annexed 
to  the  deed  was  falsified  by  the  evidence,  which  was  properly 
received  upon  the  plea  of  non  est  f actum,  to  show  that  the  de- 
fendant did  not  execute  such  a  deed  as  that  which  was  declared 
upon.  For  which  was  cited  Brooke  v.  Smith,'  where  a  memo- 
randum endorsed  on  a  bond  restraining  the  condition  was  held 
on  demurrer  to  be  part  of  the  deed,  only  because  it  was  written 
before  the  sealing  of  the  condition.  And  by  Taylor's  Case,*  if 
it  be  written  after  the  sealing  and  delivery,  it  is  no  part  of  the 
condition.  Cook  v.  Remington^  is  to  the  same  effect.  And 
Markham  v.  Gonaston  ;*  Pigot's  Case,"  in  which  it  was  held 
that  any  material  alteration  of  a  deed  after  its  execution,  though 

'  Moor,  679,  and  see  Burgh  v.  Preston,  S  Term  Rejj.  486. 
"^  Hetl.  136.  3  6  Mod.  237. 

■*  Cro.   Eliz.   626,  and  vzde  note  a  upon  this  case  in   French  7'.  Patton, 
9  East,  354. 
*  II  Rep.  27. 


742  WEEKS   V.    MAILLARDET.  [CHAP.  II. 

for  the  benefit  of  the  obligor,  will  avoid  it  ;  and  that  this  may 
be  taken  advantage  of  on  the  plea  of  non  est  factum. 

Park  and  Best  now  showed  cause  against  the  rule.  The  body 
of  the  deed  expressly  refers  to  the  schedule,  "  as  per  schedule 
annexed  ;"  and  as  the  schedule  is  the  very  copy  of  the  list  of 
articles  which  had  been  beforehand  agreed  upon  by  the  parties, 
it  must  be  taken  to  be  the  same  as  if  it  had  been,  in  fact,  an- 
nexed before  the  execution  of  the  articles  under  seal,  and  was 
as  well  authenticated  by  the  signature  of  the  witness  who  was 
the  common  agent  of  both  parties  for  this  purpose,  as  if  it  had 
been  subscribed  by  the  parties  themselves.  The  result  of  the 
cases  is,  that  any  fraudulent  alteration  of  a  deed  in  a  material 
part  will  avoid  it  ;  and  it  is  not  necessary  to  contest  that  point, 
but  it  is  not  true  as  to  every  alteration,  for  in  Zouch  v.  Clay,' 
where  two  executed  a  bond  and  delivered  it  to  the  obligee,  and 
afterward,  by  consent  of  all  parties,  the  name  of  a  third  obligor 
was  interlined,  who  also  sealed  and  delivered  it  ;  this  was  held 
not  to  avoid  the  bond  as  to  the  two  first,  and  it  was  distin- 
guished from  the  cause  of  Markham  v.  Gonaston,  where  the 
alteration  was  made  by  the  consent  of  the  obligors  only,  with- 
out notice  to  the  obligee,  though  to  his  use.  [Lord  Ellenbor- 
ough,  C.J.  Those  were  cases  of  internal  alterations  of  a  deed  ; 
and  here  the  question  is  of  something  extrinsic  which  may  work 
an  alteration.  But  you  must  contend  that  "annexed"  means 
"  to  be  annexed."]  It  must  have  been  obvious  to  the  parties 
that  the  schedule  was  not,  in  fact,  annexed  at  the  time  of  the 
execution  of  the  articles  ;  but  it  was  then  agreed  upon,  and  the 
true  addition  made  immediately  afterward.  [Lord  EUenbor- 
ough.  The  question  is  whether  the  plaintiff's  allegation,  that 
the  schedule  "  was  then  and  there  annexed"  to  the  articles — 
that  is,  at  the  time  when  they  were  executed,  was  proved  by 
showing  that  it  was  afterward  annexed  ;  upon  the  defect  of 
proof  of  that  allegation,  I  think  I  should  have  non-suited  the 
plaintiff  at  nisi prius.\  The  defendant  was  estopped  by  the  deed, 
which  states  that  the  schedule  was  then  annexed  from  showing 
that  it  was  not.  [Lord  Ellenborough.  I  cannot  say  that  he 
was  estopped  from  taking  the  objection,  that  the  plaintiff  did 
not  prove  his  allegation  in  the  declaration.]  At  least  it  is  no 
objection  upon  the  plea  of  non  est  factum.  The  transcript  of  the 
schedule  could  not  make  part  of  the  deed  ;  nor  could  it  be  less 
the  deed  of  the  party,  because  something  was  added  to  it  after- 
ward, which  formed  no  part  of  it  ;  it  was  equally  the  plain- 
tiff's deed  whether  the  schedule  was  annexed  to  it  or  not. 
But   if   advantage  can    be  taken    of   it   at  all,   it  should  have 

'  2  Lev.  35,  and  i  Ventr.  1S5  and  vide  Henfree  v.  Bromley,  6  East,  369. 


SEC.  II.]  WEEKS   V.    MAILLARDET.  743 

been  by  pleading  the  special  matter,  as  was  done  in  Taylor's 
Case.' 

Topping  z.vi6.  Adam,  Jr.,  contra,  relied  on  the  cases  before  men- 
tioned on  moving  for  the  rule,  in  support  of  the  general  point 
respecting  the  avoidance  of  deeds  by  any  subsequent  alteration 
or  addition  ;  and  argued  that  it  could  make  no  difTerence 
whether  the  alteration  was  in  tiie  body  of  the  deed,  or  by  way 
of  addition  in  a  matter  referred  to  by  the  deed,  and  material  to 
its  operation.  And  some  of  the  authorities  cited  show  that  this 
is  proper  evidence  upon  non  est  factum,  in  addition  to  which 
Cospey  V.  Turner*  is  expressly  in  point. 

Lord  Ellenborough,  C.J.  The  question  is  whether  the  ob- 
jection can  be  taken  on  the  plea  of  tion  est  factum,  and  to  deter- 
mine that  it  is  necessary  to  decide  whether  the  schedule  is  vir- 
tually a  part  of  the  deed.  Verba  relata  hoc  viaxime  operantur  per 
referentiam  ut  in  eis  inesse  videntur.^  If  it  be  no  part  of,  but 
dehors  the  deed,  the  objection  fails.  What  then  was  the  inten- 
tion of  the  parties  ?  It  was  agreed  that  the  defendant  should 
deliver  up  to  the  plaintiff  by  a  certain  day  "  the  whole  of  his 
mechanical  pieces,  as  per  schedule  annexed  ;"  all  the  machineries 
performing  and  in  good  order  ;  and  the  defendant  was  also  to 
instruct  the  plaintiff  in  the  manner  of  exhibiting  and  making 
them  perform,  "  and  on  the  day  of  the  defendant's  delivering 
the  above  pieces  as  therein  mentioned,"  the  plaintiff  was  to  pay 
him  a  certain  sum.  Without  the  schedule  there  was  no  duty  to 
be  performed  by  either  party.  The  schedule  alone  designates 
the  subject-matters  to  be  delivered  up  by  the  one  party,  and 
paid  for  by  the  other.  The  whole  deed  was  inoperative,  unless 
the  schedule  was  co-existing  with  it  and  forming  part  of  the 
obligation.  Taken  by  itself,  the  deed  is  insensible,  and  has  no 
object  to  operate  upon,  therefore  it  is  not  the  defendant's  deed 
without  the  schedule  which  gives  effect  and  meaning  to  the 
whole  of  the  duties  to  be  performed  on  either  side.  The  arti- 
cles assume  that  at  the  time  of  their  execution  the  schedule  was 
annexed,  and  if  there  were  then  no  schedule  there  was  no  deed 
for  any  sensible  purpose,  for  no  duty  could  be  demanded  on 
the  one  side  or  performed  on  the  other  without  the  schedule. 
The  objection,  therefore,  is  well  founded. 

Grose,  J.  At  the  time  of  the  execution  of  the  articles  there  was 
no  schedule  annexed  to  which  they  could  apply,  but  it  was  written 
and  annexed  afterward  by  the  witness,  therefore  the  deed  on 
which  the  breach  is  assigned  was  not  the  deed  of  the  defendant. 

•  Hetl.  136.  A  mistake  was  observed  in  that  report,  the  word  before  is 
printed  instead  of  after  in  p.  137,  line  14. 

'  Cro.  Eliz.  800.  ^  Co.  Lit.  359. 


744  POWELL  V.   DUFF.  [CHAP.  II. 

Le  Blanc,  J.  The  difficulty  arises  on  the  form  of  the  plea. 
At  first  I  thought  that  the  proof  that  the  defendant  had  exe- 
cuted an  instrument  in  the  very  terms  as  set  out  in  the  declara- 
tion for  the  delivery  of  the  whole  of  his  mechanical  pieces,  as 
per  schedule  annexed,  was  sufficient  to  maintain  the  declaration 
upon  the  plea  that  it  was  not  the  deed  of  the  defendant  ;  and 
'^that  the  averment  that  there  was  then  and  there  annexed  and 
subscribed  a  certain  schedule  of  the  said  several  pieces  of  mech- 
anism, etc.,  if  not  true,  should  have  been  taken  advantage  of 
by  a  substantive  plea,  putting  that  fact  in  issue.  But  as  the 
whole  deed  is  inoperative  without  the  schedule,  and  as  the  party 
is  charged  with  having  executed  a  deed  referring  to  a  certain 
supposed  schedule  as  then  annexed,  the  declaration  in  effect 
avers  that  the  defendant  executed  a  deed  with  such  a  schedule 
annexed  at  the  time,  and  the  proof  being  that  he  executed  the 
instrument  without  any  such  schedule  annexed,  it  is  not  the 
instrument  which  he  is  charged  with  having  executed. 

Bayley,  J.  The  plaintiff  declares  in  substance  that  the  de- 
fendant executed  a  scheduled  instrument,  which  the  defendant 
by  his  general  plea  denies  ;  and  it  is  part  of  the  issue,  the  proof 
of  which  lies  on  the  plaintiff,  to  show  that  the  defendant  exe- 
cuted a  scheduled  instrument  ;  this  he  has  failed  to  prove.  And 
it  is  material  to  the  party  whether  he  is  to  be  bound  by  that  list 
of  articles  to  be  delivered  which  he  executes  at  the  time,  or  by 
one  which  is  to  be  supplied  afterward,  and  which  is  to  be 
proved  by  parol  evidence  to  be  the  list  which  was  to  be  an- 
nexed. 

Rule  absolute. 


POWELL,  Assignee  of  the  Sheriff  of  Middlesex,  v. 

DUFF. 

At  Nisi  Prius,   February  17,   1812. 

\_Reported  in  3  Campbell  181.] 

The  plaintiff  declared  in  the  common  form  upon  a  bail  bond 
in  the  penal  sum  of  ^194,  conditioned  for  the  appearance  of 
one  J.  S.,  at  the  return  of  a  writ  of  special  capias. 

Plea  non  est  factum. 

The  attesting  witness  swore  that  when  the  bond  was  to  be 
executed,  the  defendant  was  in  a  great  hurry  to  get  away  ;  that 
for  this  reason  he  executed  it  when  only  the  penal  part  had 
been  filled  up,  and  that  the  condition  was  filled  up  after  he  had 
left  the  office. 


SEC.  II.]  HUDSON   V.    KEVETT.  745 

Park  contended,  that  for  this  rceison  the  bond  was  void. 

Garrma,  contra,  insisted,  that  this,  like  all  other  contracts, 
must  be  governed  by  the  meaning  of  the  contracting  parties  ; 
that  the  defendant  clearly  authorized  the  filling  up  of  the  con. 
dition  in  its  present  shape  ;  that  the  obligatory  part  ol  the 
instrument  was  enough  to  render  it  a  binding  deed  ;  and  that 
the  case  might  be  likened  to  a  man  signing  his  name  on  a  blank 
Stamp,  by  which  he  might  be  made  liable  as  acceptor  of  a  bill 
of  exchange. 

Lord  Ellenborough.  A  man  may  render  himself  liable  as 
a  party  to  a  bill  of  exchange  or  promissory  note,  by  signing  his 
name  on  a  blank  stamp  ;  but  there  are  certain  solemnities  indis- 
pensable to  the  validity  of  deeds.  The  defendant  never  did 
execute  a  bond  with  such  a  condition.  The  condition  is  set  out 
in  the  declaration  as  part  of  the  instrument,  and  must  have 
been  so,  or  the  plaintiff  could  not  sue  as  assignee.  The  plea  of 
non  est  factum  must,  therefore,  be  found  for  the  defendant. 

The  plaintiff  submitted  to  be  nonsuited. 

Garrow  and  Espinasse,  for  the  plaintiff. 

Jervis,  for  the  defendant. 


HUDSON  V.  REVETT. 

In  the  Common  Pleas,   February  7,   1829. 
[Reported  zn  5  Bingham  368.J 

This  was  an  issue  directed  by  the  Court  of  Common  Pleas  to 
try  whether  certain  deeds  of  lease  and  release,  and  an  accom- 
panying deed  of  trust,  were  the  deeds  of  the  defendant,  and  if 
so,  whether  they  had  been  obtained  by  fraud,  covin,  or  misrep- 
resentation. 

The  lease  and  release  bore  date  November  25th  and  26th, 
1825,  respectively  ;  the  deed  of  trust  the  latter  day  ;  and  the 
object  of  the  deeds  was  to  effect  a  conveyance  of  Revett's 
property  to  Hudson,  in  trust  to  raise  money  by  sale  of  it  for 
the  payment  of  Revett's  debts,  with  a  trust,  as  to  any  residue, 
in  favor  of  Revett  ;  and  "  in  the  first  place,  for  the  trustee  to 
pay  and  defray  the  costs,  charges,  and  expenses  of  all  parties 
thereto  attending  the  preparing,  settling,  completing,  and  ex- 
ecuting those  presents,  and  the  several  indentures  of  lease  and 
release  therein  referred  to." 

At  the  trial  before  Holroyd,  J.,  last  Suffolk  Summer  assizes, 
Mr.  Brown,  the  attorney  who  prepared  the  deeds,  and  was  also 


746  HUDSON   V.    REVETT.  .     [cHAP.  II. 

a  party  to  the  deed  of  trust,  stated,  that  on  Monday,  November 
28th,  1825,  the  defendant  being  then  a  prisoner  in  the  King's 
Bench  prison,  he,  Brown,  on  the  part  of  the  plaintiff  and  other 
creditors,  and  acting,  as  he  conceived,  for  all  parties,  went, 
accompanied  by  Columbine,  the  attesting  witness,  to  the  defend- 
ant in  the  prison,  for  the  purpose  of  procuring  the  execution  of 
the  deeds.  That  they  corresponded  exactly  with  drafts  which 
had  before  been  assented  to  and  signed  by  the  defendant  ;  that 
blanks  were  left  for  the  amounts  of  the  debts  of  various  credit- 
ors, which  were  then  filled  up,  with  the  exception  of  the  blank 
for  the  debt  of  one  Mills,  a  creditor  ;  that  Mills,  who  was 
present,  claimed  ^16,000  odd  ;  but  that  the  defendant  showed 
an  account,  reducing  Mills's  debt  to  ^14,858  8^.  8(/.,  and  said 
he  had  vouchers  by  which  he  could  confirm  the  account.  The 
account  was  admitted,  subject  to  the  production  of  these 
vouchers  ;  and  it  was  agreed  that  the  blank  for  Mills's  debt 
should  be  filled  up  when  they  were  produced.  The  defendant 
and  Mills  then  executed  the  deed,  leaving  the  blank  to  be  filled 
up  as  above  mentioned.  This  statement  was  confirmed  by  the 
attesting  witness,  the  only  other  person  present.  The  next  day 
Brown  and  Mills  attended  the  defendant  again  ;  but  Columbine 
was  not  present.  The  defendant  produced  the  vouchers  in 
question  ;  the  balance  was  struck  :  Brown  filled  up  the  blanks 
with  the  sum  of  ^,^14,858  8j-.  8^.,  and  then  went  away,  taking 
with  him  the  deeds  for  the  purpose  of  procuring  their  execu- 
tion by  other  parties.  The  instrument  at  that  time  had  a  deed- 
stamp  (not  ad  valoreni),  and  no  new  stamp  was  added.  The 
'defendant  left  the  prison  shortly  afterward,  and  the  deeds  were 
executed  in  his  presence  by  his  wife  (who  also  joined  in  a  fine 
to  enure  to  the  uses  of  the  trust-deed),  under  his  sanction,  when 
he  was  at  liberty. 

The  plaintiff,  the  trustee,  did  not  execute  the  trust-deed  till 
the  end  of  the  ensuing  December.  Many  letters  were  subse- 
quently written  by  the  defendant,  in  which  he  not  only  treated 
the  deeds  as  valid  instruments,  but  ordered  the  occupiers  of  the 
property  to  pay  their  rents  to  the  plaintiff,  and  the  steward  of 
the  manor  to  deliver  up  his  books  and  the  rolls  of  the  manor  to 
Brown.  It  appeared,  further,  that  he  had  told  one  Chapman 
that  he  had  executed  the  deeds,  and  had  gained  time  ;  also, 
that  he  had  carried  into  effect  the  fine  that  was  to  pass  his 
wife's  interest. 

Brown  was  objected  to  as  a  witness,  as  having  an  interest  to 
support  the  deed  in  order  to  recover  his  own  charges,  and  as 
being  defendant  in  an  action  of  trespass,  in  which  his  defence 
rested  on  a  claim  to  property  under  this  deed.     See  Revett  v. 


SEC.  II.]  HUDSON   i:    ReVeTT.  747 

Brown.'  But  it  was  answered,  that  though  by  an  express 
clause  in  the  deed  the  trustee  was  authorized  to  defray  those 
charges  out  of  the  property,  he  was  personally  liable  to  Brown 
under  his  retainer  ;  that  Brown  could  recover  against  him  only 
by  virtue  of  that  retainer,  and  that  the  deed  would  be  no 
•evidence  in  support  of  Brown's  claim.  The  learned  Judge 
overruled  the  objection. 

No  evidence  was  offered  on  the  part  of  the  defendant  ;  but 
the  following  passage  in  Bull.  N.  P.,  p.  267,  was  relied  on  : 
"  If  there  be  blanks  left  in  an  obligation  in  places  material, 
and  filled  up  afterward  by  the  assent  of  parties,  yet  is  the  obliga- 
tion void,  for  it  is  not  the  same  contract  that  was  sealed  and 
delivered  :  as  if  a  bond  were  made  to  C,  with  a  blank  left  after 
for  his  Christian  name  and  for  his  addition,  which  is  afterward 
filled  up." 

Holroyd,  J.,  told  the  jury  it  did  not  appear  in  the  passage 
cited  that  the  alteration  was  made  in  the  presence  of  the  party, 
but  that,  if  in  such  a  case  there  was  that  which  amounted  to  a 
redelivery,  and  showed  that  the  party  meant  the  deed  should 
be  acted  on  in  its  altered  state,  the  alteration  being  made  in  his 
presence  would  amount  to  a  redelivery,  and  the  deed  would  be 
his  in  its  altered  state  ;  he  referred  to  Goodright  d.  Carter  v. 
Straphan,'^  where  the  redelivery  by  a  feme,  after  baron  s  death, 
of  a  deed  delivered  by  her  while  covert,  was  held  a  sufficient 
confirmation  of  the  deed  to  bind  her  without  re-execution  or 
re-attestation,  and  said  that  circumstances  alone  might  be 
equivalent  to  a  redelivery.  Then,  observing  on  the  fact  that 
the  blank  in  the  present  case  had,  according  to  a  previous 
arrangement,  been  filled  up  in  tlie  defendant's  presence,  and  with 
his  consent,  that  he  had  afterward  assisted  at  and  sanctioned 
the  execution  of  the  deed  by  his  wife,  and  had  acted  upon  it  as 
a  valid  instrument,  he  said,  that  unless  the  jury  disbelieved  the 
evidence,  there  was  abundant  ground  for  their  considering 
this  deed  as  the  deed  of  the  defendant  :  of  fraud  or  covin  no 
evidence  had  been  offered. 

The  jury  found  that  the  deeds  were  the  deeds  of  the  defend- 
ant, and  that  the  execution  of  them  had  not  been  obtained  by 
any  fraud,  covin,  or  misrepresentation. 

Wilde  moved  for  a  new  trial,  on  the  ground  that  Brown  ought 
not  to  have  been  admitted  as  a  witness,  and  that  the  deed  was 
void,  having  been  altered  in  a  material  particular  after  its 
execution,  without  any  redelivery.  There  was  also  an  objec- 
tion to  the  stamp. 

A  redelivery,  he  contended,  could  only  be  implied  where  there 
'  Ante,  Vol.  V.  p.  7.  '  CowiJ.  201. 


748  HUDSON   V.    REVETT.  [cHAP.  II. 

was  no  evidence  to  rebut  the  presumption  ;  here,  the  circum- 
stance that  the  deed  was  always  out  of  Revett's  possession  was 
evidence  sufficient  to  rebut  any  such  presumption.  In  Good- 
right  V.  Straphan  the  deed  had  never  been  executed  at  all  before 
the  death  of  the  husband,  for  an  execution  by  2,  feme  ccoert  was 
altogether  void  ;  here  the  deed  was  once  well  executed,  and 
there  could  be  no  new  execution  actual  or  implied  without  a 
new  stamp.  A  rule  nisi  having  been  granted, 
Storks  and  Russell  showed  cause. 
Wilde,  for  the  defendant. 

Best,  C.J.  This  brings  us,  therefore,  to  the  great  questions 
in  this  case.'  They  have  been  divided  into  two.  It  has 
been  first  insisted  that  there  was  no  perfect  execution  of  the 
deed  until  the  sum  of  ;,^i4,858  was  written  in  it  ;  and  if  there 
was  not  a  perfect  execution  of  the  deed  up  to  that  time,  then  it 
was  competent  for  my  brother  Holroyd  to  refer  it  to  the  jury, 
to  consider  whether  they  would  not  presume  an  execution  of 
the  deed  after  all  the  sums  were  written  in  and  it  was  rendered 
a  perfect  deed.  I  am  of  opinion  that  this  is  a  correct  view  of 
the  case  ;  and  if  it  is,  it  comes  precisely  within  the  principle  of 
the  case  to  which  my  brother  Holroyd  has  referred,  of  Doe  d. 
Carter  v.  Straphan.  In  that  case  a  deed  had  been  executed  by 
a  married  woman,  and,  as  such,  was  undoubtedly  void.  After 
the  death  of  her  husband,  she,  by  various  acts,  confirmed  this 
I  deed.  The  Court  of  King's  Bench  decided,  that  by  the  con- 
/  firmation  of  the  deed  the  jury  were  warranted  in  presuming  a 
're-execution  of  it.  Undoubtedly,  in  that  case.  Lord  Mansfield 
refers  to  a  passage  in  Perkins,  where  he  says,  "  It  is  to  be 
known  that  a  deed  cannot  have  and  take  effect  at  every  delivery 
as  a  deed  ;  for  if  the  first  delivery  takes  effect  the  second 
delivery  is  void  ;  and  in  case  an  infant  or  a  man  in  prison 
makes  a  deed  and  delivers  the  same  as  his  deed,  and  afterward 
when  the  infant  comes  to  his  full  age,  or  the  man  in  prison 
when  at  large  delivers  the  same  again  as  his  deed  which  he 
delivered  before  as  his  deed,  this  second  delivery  is  void." 
That  brings  us  to  the  question.  Was  there  any  perfect  delivery 
of  this  deed  antecedent  to  the  period  when  these  sums  were 
written  in  ?  If  one  looks  at  the  deed,  and  particularly  at  that 
part  of  the  deed  which  my  learned  brother  has  referred  us  to, 
( it  is  quite  impossible  that  the  deed  could  be  considered  as  hav- 
ing any  operation  till  these  sums  were  actually  written  in, 
because,  what  was  the  object  of  the  deed  ?  The  object  of  all 
the 'deed  was  to  convey  the  estates  to  trustees,  that  those 
estates  might  be  sold,  and  that  the  proceeds  of  those  estates 
'  Only  so  much  of  the  opinion  is  given  as  relates  to  these  questions. 


SEC.  II.]  HUDSON   V.    REVETT.  749 

might  be  applied  to  pay  certain  creditors*  debts  which  were  to 
be  ascertained.  In  the  preparation  of  the  draft  of  this  deed 
blanks  were  left  for  the  insertion  of  the  sums  when  those  sums 
should  be  ascertained.  When  these  parties  met  in  the  King's 
Bench  prison,  can  it  be  said  that  that  was  a  perfect  execution 
of  the  deeds,  when  the  sums  that  were  due  to  these  creditors 
remained  unascertained  ?  The  operative  part  of  tlie  deed  refers 
to  the  payment  of  particular  sums,  which,  as  then,  were  unascer- 
tained. It  is  quite  clear,  if  nothing  had  passed  at  this  time,  that 
the  deed  could  not  be  an  operative  deed  until  those  sums  were 
introduced,  because  the  great  object  of  the  deed  was  the  pay- 
ment of  those  sums.  I  think,  therefore,  taking  it  in  this  point 
of  view,  that  this  was  not  to  be  considered  as  an  execution  of 
the  deed — that  this  was  not  a  complete  deed — and  that  there- 
fore the  case  falls  within  the  authority  of  the  case  in  Cowper, 
and  not  within  the  law  which  is  extracted  from  Perkins. 

This  deed,  as  I  have  stated,  undoubtedly  was  not  to  be  con- 
sidered as  complete  until  the  sums  were  introduced.  But  it 
has  been  said,  if  it  was  delivered  to  the  party  it  could  not  be 
delivered  as  an  escrow,  unless  so  delivered,  in  terms.  Perhaps, 
technically  speaking,  this  is  so  ;  because  a  deed  delivered  to  a 
party  is  not  an  escrow,  a  deed  delivered  to  a  stranger  is  an 
escrow  till  something  is  done  ;  but  though  it  is  delivered  to  a 
party,  there  are  cases,  and  in  the  same  page,  to  which  my 
learned  brother  referred,  to  show  that  it  is  not  a  perfect  and 
complete  deed  ;  Com.  Dig.  tit.  Faits  (A  3)  :  "  So  if  it  be  once 
delivered  as  his  deed,  it  is  sufficient,  though  he  afterward 
explained  his  intent  otherwise,  as  if  an  obligation  be  made  to 
A.  and  delivered  to  A.  himself  as  an  escrow,  to  be  his  deed  on 
the  performance  of  a  condition,  this  is  an  absolute  delivery,  and 
the  subsequent  words  are  void  and  repugnant."  The  authori- 
ties referred  to  in  the  text,  in  support  of  this  position,  are  at 
least  conflicting  ;  but  in  the  next  division  (A  4)  it  appears  that 
this  position  about  delivery  as  an  escrow  is  merely  a  technical 
subtlety  ;  for  the  learned  writer  says,  "  If  it  be  delivered  to  the 
party  as  an  escrow,  to  be  his  deed  on  the  performance  of  a  con- 
dition, it  is  not  his  deed  till  the  conrlition  is  performed,  though 
the  party  happens  to  have  it  before  the  condition  is  performed." 
This  he  lays  down  on  his  own  authority,  without  referring  to 
any  case  ;  and  I  am  warranted  in  saying  we  cannot  have  a 
better  authority  than  that  learned  writer. 

Let  us  see  how  that  doctrine  applies  to  the  present  case.  The 
parties  meet  ;  something  is  to  be  done  before  a  complete  deed 
can  be  made  ;  the  sums  are  to  be  ascertained  which  the  different 
creditors  are  to  be  paid.      That  cannot  be  ascertained  that  d  ly, 


750  HUDSON   V.    REVETT.  [CHAP.  Ii. 

it  is  ascertained  at  a  subsequent  day,  and  they  are  written  in. 
Take  it,  if  you  please,  that  this  is  a  delivery  of  the  deed  as  a 
deed,  is  it  not  a  delivery  of  the  deed  in  the  language  of  Lord 
Coke,  upon  condition — that  is,  upon  condition  that  something 
is  to  be  done,  which  at  that  time  was  not  done  ?  That  some- 
thing is  afterward  done  ;  then,  and  not  till  then,  it  becomes  a 
perfect  deed.  It  seems  to  me,  therefore,  without  touching  any 
of  the  cases  that  have  been  decided  on  the  operation  of  deeds, 
we  may  say  that  this  deed  was  not  a  complete  deed,  executed  so 
as  to  have  effect  in  the  hands  of  the  parties  until  these  sums 
were  written  in. 

I  shall  not,  after  what  I  have  said,  travel  through  the  different 
cases  that  have  been  cited  with  respect  to  the  alteration  of 
deeds  ;  but  I  beg  not  to  be  taken  as  deciding,  that  if  a  deed  be 
altered  with  the  consent  of  all  the  parties,  after  it  is  executed, 
it  is  not  to  be  considered  as  a  good  deed.  I  think,  if  we  were 
driven  to  examine  that  question,  it  would  be  found  that,  in 
these  times,  whatever  might  have  been  thought  formerly,  if  all 
the  parties  assent  to  the  alteration  of  a  deed,  it  will,  in  its 
altered  shape,  be  a  good  deed  ;  but  I  do  not  decide  this  case  on 
that  ground.  I  decide  it  on  this,  that  it  either  was  no  deed  at 
all,  until  the  sums  were  written  in,  and  that  then  the  jury  were 
warranted  in  presuming  a  delivery  to  make  it  a  deed  ;  or,  if  it 
were  a  deed,  it  was  delivered  only  to  have  operation  frorri 
the  time  that  those  sums  were  written  in,  which  were  to  give  it 
all  its  effect.  I  think  we  must  take  it,  from  what  passed  at  the 
time  of  the  execution,  it  vv^as  not  to  be  considered  as  having 
effect,  till  it  could  have  its  full  effect,  by  all  the  sums  being 
written  in,  that  were  to  be  written  in.  On  these  grounds  I  am 
of  opinion  that  the  rule  should  be  discharged. 

My  brother  Burrough,'  who  heard  the  argument,  desired  I 
should  state  he  concurred  in  this  opinion. 

Gaselee,  J.  This  case  has  been  extremely  well  argued,  and 
a  great  many  authorities  have  been  referred  to  which  it  is  not 
necessary  to  go  through  at  length.  The  authority  that  struck 
me  the  most  as  against  the  opinion  of  my  Lord  Chief  Justice 
as  now  delivered,  was  the  passage  cited  from  Buller  :  "  If  there 
be  blanks  left  in  an  obligation  in  places  material,  and  filled  up 
afterward  by  the  assent  of  the  parties,  yet  is  the  obligation 
void,  for  it  is  not  the  same  contract  that  was  sealed  and  deliv- 
ered."  That  is  certainly  borne  out  by  the  authority  in  Roll's 
Abr.  But  I  think  the  instance  which  he  specifies  is  not  borne 
out  by  the  authority  to  which  he  refers.  He  goes  on  :  "  As  if  a 
bond  be  made  to  C,  with  a  blank  left  for  his  Christian  name, 
'  He  was  at  chambers.     Park.  T..  was  absent  from  ill-health. 


SEC.  II.]  HUDSOX   V.    REVETT.  75 1 

and  for  his  addition,  which  is  afterward  filled  up."  I  should 
certainly  have  thought  that  the  leaving  the  blank  for  tlie  Chris- 
tian name  and  the  addition  imported  of  itself  it  was  to  be  after- 
ward filled  up  ;  and  I  think  that  Justice  Buller's  position  is  not 
warranted  by  the  authority  to  which  he  refers.  Certainly  this 
ca.se  does  not  range  itself  within  the  first  part  of  the  sentence, 
because,  notwithstanding  the  degree  of  industry  with  which  my 
brother  Wilde  has  cited  cases,  and  the  confidence  with  which  he 
argued  that  the  contract  was  altered,  I  cannot  agree  with  him 
on  that  ;  it  appears  to  me,  from  what  was  done  in  this  case, 
that  the  contract  was  not  altered.  What  was  the  object  of  the 
contract  ?  The  contract  was  to  pay  all  that  Revett  was  indebted 
to  Mills  and  other  creditors  ;  that  which  was  uncertain  when 
the  deed  was  first  executed,  or,  rather,  when  the  deed  was 
originally  sealed,  was  afterward  reduced  to  a  certainty.  And 
the  way  in  which  I  consider  that  this  deed  is  good  is  this — that 
it  was  an  imperfect  execution,  with  an  agreement  at  the  time 
that  it  should  take  effect  when  the  blanks  were  filled  up.  There 
was  a  meeting  for  that  purpose,  the  sums  at  that  time  were 
agreed  to,  and  it  was  filled  up  by  Brown,  who  was  adopted  as 
the  agent  of  both  parties  ;  and  he  took  away  the  deed  for  the 
purpose  of  carrying  it  to  other  parties,  by  whom  it  was  also  to 
be  executed.  It  is  said  that  the  defendant  Revett  never  had 
himself  the  possession  of  this  deed.  No  ;  but  a  deed  may  be 
delivered  either  by  taking  hold  of  the  deed  itself,  or  by  words, 
or  by  acts.  The  permitting  this  person  to  take  the  deed  away 
for  the  purpose  of  the  other  parties  executing  it,  is  of  itself  fit 
to  be  left  to  the  jury,  as  a  question  whether  or  not  that  was  not 
(if  a  redelivery  should  be  held  to  be  necessary)  a  redelivery  on 
the  mere  insertion  of  the  sums.  On  that  ground  I  am  of 
opinion  this  trust  deed  is  to  be  considered  as  good. 

With  respect  to  the  witness  Brown,  I  should  have  great  diffi- 
culty on  the  subject,  taking  it  in  the  usual  course,  in  saying 
that  Brown  would  be  a  witness.  He  is  a  party  to  the  deed, 
and  he  had,  at  the  time  of  the  trial,  incurred  expenses,  and  the 
expenses  were  to  be  paid  according  to  the  terms  of  the  deed. 
But,  considering  it  in  the  point  of  view  in  which  my  Lord  Chief 
Justice  has  considered  it,  and  in  which  I  have  known  issues, 
directed  by  the  Court  of  Chancery,  treated,  where  the  object 
was  to  satisfy  the  conscience  of  the  Court  ;  if,  upon  the  whole, 
we  see  that  justice  has  been  done,  there  is  no  occasion  to  send 
it  down  to  a  new  trial.  Now,  has  justice  been  done  here  ;  and 
does  it  depend  really  and  singly  on  the  testimony  of  Brown  ? 
First  of  all.  What  is  the  probability  ?  The  probability  of  the 
case  is,  that  it  was  left  for  future  consideration.     There  are  a 


752*  CANDOR   AND    HENDERSON'S   APPEAL.         [cHAP.  II. 

great  many  blanks  when  the  deed  is  carried  to  be  executed  the 
first  day  in  the  King's  Bench  ;  all  the  blanks  were  filled  up, 
except  Mill's  debt  ;  the  probability  is,  that  at  that  time  Mill's 
debt  was  not  ascertained  ;  we  have  it  from  Brown  it  was  done 
the  next  day.  Does  it  rest  on  his  evidence  only  ?  Mr.  Chap- 
man says,  "  I  saw  Revett  afterward,  with  the  draft  of  the  deed 
before  him  ;  he  was  reading  ;  he  told  me  he  had  executed  it, 
and  that  he  had  got  time  ;"  therefore,  the  evidence  of  Chap- 
man shows  that  what  was  done  the  second  day  of  meeting  was 
done  with  Revett's  assent.  But  it  does  not  rest  there  ;  it 
appears  that  Revett  was  cognizant  of  all  he  had  done,  and 
he  expressly  acts  upon  and  confirms  the  deed  ;  for  he  says,  in  a 
letter  to  Moss,  a  tenant,  "  Having  this  day  executed  to  Mr. 
Thomas  Hudson,  of  the  firm  of  Messrs.  Harveys  and  Hudsons, 
bankers  at  Norwich,  a  conveyance  of  all  my  estate  and  here- 
ditaments, in  trust,  for  the  purpose  of  satisfying  various  charges 
and  incumbrances,  on  the  above  property,  I  write  to  desire  that 
you  will  in  future  pay  your  rents  to  the  said  Thomas  Hudson, 
or  his  appointed  receiver,  whose  receipt  will  be  a  sufficient  dis- 
charge." That  letter,  therefore,  shows  the  confirmation  of  the 
contract ;  it  shows  he  was  aware  of  what  had  been  done,  and 
I  think  satisfies  the  Court  that  the  jury  upon  this  occasion  have 
done  justice. 

Rule  discharged. 


Section  HI. — Consideration. 
CANDOR  AND  HENDERSON'S  APPEAL. 

In  the  Supreme  Court,  of  Pennsylvania,    1856. 
^Reported  171  27  Pennsylvania  State  Reports  119.] 

Appeal  from  the  Orphans'  Court  of  Union  County. 

This  was  an  appeal  by  Robert  Candor  and  Samuel  Hender- 
son, executors  of  William  B.  Sullivan,  deceased,  from  the 
decree  of  the  Orphans'  Court,  refusing  them  credit  for  a  pay- 
ment claimed  in  their  account. 

On  November  2d,  1849,  the  decedent  gave  a  bond  to  David 
Marr,  in  trust  for  Mary  Adaline  Sullivan,  his  daughter,  for 
$2000,  payable  ten  years  after  date,  or  at  his  death,  if  that 
should  take  place  sooner.  Afterward,  on  July  13th,  1850,  the 
decedent  executed  his  last  will,  which  was  duly  proved  on  Sep- 
tember  17th,   following,   in   which   is   contained   the   following 


SEC.  III.]  CANDOR   AND    HENDERSON'S   APPEAL.  753 

bequest,  to  wit  :  "  Item — I  give  and  bequeath  to  my  daughter, 
Mary  Adaline  (in  lieu  of  bond  which  I  gave  to  David  Marr,  in 
her  favor),  the  one  half  of  the  residue  of  my  estate,  real  and 
personal."  The  guardian  of  the  child  refused  to  accept  of  the 
bequest  under  the  will  of  the  testator,  and  claimed  the  amount 
of  the  bond  aforesaid.  The  executors  paid  the  amount  of  the 
bond  to  the  guardian,  and  took  his  receipt  ;  and  in  their  account 
filed,  claimed  credit  for  the  said  payment.  This  item  on  the 
credit  side  of  the  account  was  excepted  to.  Samuel  Weirick, 
Esq.,  was  appointed  auditor,  and  sustained  the  exception.  The 
accountants  excepted  to  the  report  of  the  auditor,  but  their 
exceptions  were  overruled  by  the  court,  and  the  auditor's 
report  confirmed.  And  from  this  decree  the  accountants 
appealed. 

The  confirmation  of  the  report  of  the  auditor  was  the  error 
assigned.  The  appellees  also  moved  to  quash  the  appeal 
because  not  taken  within  twenty  days. 

Lawson,  for  appellants. 

Miller,  for  appellees. 

The  opinion  of  the  court  was  delivered  by 

Lewis,  C.J.  The  limitation  of  twenty  days  allowed  for 
appeals  in  certain  cases  has  no  application  to  appeals  from 
decrees  of  the  Orphans'  Court  adjusting  an  administration 
account.  The  appeal  is  in  time,  and  the  motion  to  quash  it  is 
overruled. 

The  auditor  reports  that  the  testator  "  gave"  the  bond  in 
question.  There  is  nothing  in  any  part  of  the  record  to  impair 
the  force  of  this  finding,  or  to  create  a  belief  that  it  is  erroneous 
in  point  of  fact.  The  possession  of  the  bond,  by  the  executors, 
after  they  have  paid  it,  and  are  entitled  to  the  possession  of  it 
as  a  voucher,  is  no  evidence  to  show  that  it  never  was  given. 
At  least  this  circumstance  cannot  have  the  effect  of  overthrow- 
ing the  positive  finding  of  the  auditor. 

The  bond  is  made  payable  "  ten  years  after  date,"  irrespec- 
tive of  the  question  whether  the  obligor  should  be  living  or 
dead  at  that  time.  There  is,  therefore,  no  ground  for  holding 
it  to  be  a  doriatio  mortis  causa. 

It  is  under  seal,  and  is  found  expressly  to  be  a  "  voluntary" 
bond.  The  seal  imports  a  consideration,  and  creates  a  legal 
obligation.  In  a  "voluntary"  bond  no  consideration  is  con- 
tracted for  or  expected.  The  absence  of  one  is  therefore  no 
ground  for  equitable  relief  from  a  contract  conceded  to  be  good 
at  law,  without  it.  To  say  that  the  "  want  of  consideration" 
is  a  defence  against  a  bond  is  to  express,  in  language  not  re- 
markable for  precision,  nothing  more  than   the  familiar  prin- 


754  ALLER   V.    ALLER.  [CHAP.  II. 

ciple  that  where  the  obligor  fails  to  receive  the  consideration 
contracted  for,  and  on  the  faith  of  which  he  entered  into  the 
contract,  he  is  not  bound  to  pay  his  bond.  This  principle  has 
no  application  whatever  to  the  case  before  us,  because  no  con- 
sideration was  contracted  for  or  expected.  A  voluntary  bond, 
it  is  true,  must  be  postponed  until  creditors  are  paid  ;  but  it  is 
always  good  against  the  party  himself,  and  against  heirs,  legatees, 
and  others  who  stand  in  no  higher  equity.  2  Williams  on 
Executors,  871  ;  3  P.  Wms.  223  ;  2  Mylne  &  K.  769.  In  this 
respect  a  simple  contract  differs  from  a  specialty.  In  the  one 
case  the  party  is  not  bound  without  a  consideration.  5  T.  R.  8. 
In  the  other  no  consideration  is  necessary  if  none  was  contracted 
for.     17  John,  Rep.  301. 


ALLER   V.  ALLER. 

In  the  Supreme  Court  of  New  Jersey,  November  Term,  1878. 
[Reported  in  40  New  Jersey  Law  Reports ^^i\.b.} 

On  rule  to  show  cause  why  a  new  trial  should  not  be  granted 
on  verdict  for  the  plaintiff  in  Hunterdon  County  Circuit 
Court. 

The  action  was  brought  on  the  following  instrument,  viz.  : 
"  One  day  after  date,  1  promise  to  pay  to  my  daughter,  Ange- 
line  H.  Aller,  the  sum  of  three  hundred  and  twelve  dollars  and 
sixty-one  cents,  for  value  received,  with  lawful  interest  from 
date,  without  defalcation  or  discount,  as  witness  my  hand  and 
seal  this  fourth  day  of  September,  one  thousand  eight  hundred 
and  seventy-three.  $312.61.  This  note  is  given  in  lieu  of  one 
half  of  the  balance  due  the  estate  of  Mary  A.  Aller,  deceased, 
for  a  note  given  for  one  thousand  dollars  to  said  deceased  by 
me.  Peter  H.  Aller.  [l.  s.]  Witnesses  present,  John  J. 
Smith,  John  F.  Grandin." 

Both  subscribing  witnesses  were  examined  at  the  trial,  and 
it  appeared  that  there  was  a  note  for  $1000,  dated  May  ist, 
i^sS,  given  by  said  Peter  H.  Aller  to  Mary  Ann  Aller,  upon 
which  there  were  endorsements  of  payments — April  ist,  1863, 
$50  ;  April  ist,  1866,  $46  ;  April  ist,  1867,  $278.78. 

Mary  Ann  Aller,  the  wife,  died,  and  on  the  day  after  her 
burial,  Peter  H.  Aller  told  his  daughter,  the  plaintiff,  to  get 
the  note,  \vhich  he  said  was  among  her  mother's  papers.  She 
brought  it,  read  the  note  ;  he  said  there  was  more  money  en- 
dorsed on   it  than  he  thought  ;  requested  the  witness  John  F. 


SEC.  III.]  ALLER   V.    ALLER.  755 

Grandin  to  add  up  the  endorsements  and  subtract  them  from 
the  principal,  to  divide  the  balance  by  two,  and  draw  a  note 
to  each  of  her  daughters,  Leonora  and  Angelina,  for  one  half. 
After  they  were  drawn  by  the  witness,  Peter  H.  Aller  said  : 
"  Now  here,  girls,  is  a  nice  present  for  you,''  and  gave  them 
the'  notes.  Angelina  was  directed  to  put  the  old  note  back 
among  her  mother's  papers.  Grandin  was  afterward  appointed 
administrator  of  Mary  A.  Aller,  and  as  such,  he  says,  he 
destroyed  the  old  note. 

The  letters  of  administration  ;  a  copy  of  the  original  note 
and  endorsements  thereon  ;  a  deed  of  release  by  Peter  H.  Aller 
to  Leonora  Sharp  and  Angelina  H.  Aller,  in  which,  for  the  con- 
sideration of  one  dollar,  and  of  natural  love  and  affection,  he 
released  all  his  right  and  interest,  "  by  the  curtesy,"  to  all  the 
real  and  personal  estate  of  said  Mary  A.  Aller,  deceased,  which 
is  dated  September  8th,  1873  ;  and  the  last  will  and  testament 
of  Peter  H.  Aller  were  offered  in  evidence. 

This  action  was  brought  by  Angelina  H.  Aller,  now  Angelina 
H.  McPherson,  against  Peter  H.  Aller  in  his  lifetime,  and,  after 
his  death,  continued  against  his  executor,  Michael  Shurts. 

The  defendant,  Peter  H.  Aller,  was  aged  and  feeble,  and  the 
plea  was,  therefore,  filed  in  his  lifetime,  by  consent,  without 
affidavit. 

Argued  at  June  Term,  1878,  before  Beasley,  C.J.,  and  Depue, 
Scudder,  and    Knapp,  J.J. 

G.  A.  Allen  and  J.  R.  Emery,  for  plaintiff. 

J.  T.  Bird,  for  defendant. 

The  verdict  was  for  the  plaintiff,  and  the  rule  to  show  cause 
was  allowed  at  the  Circuit. 

The  opinion  of  the  Court  was  delivered  by 

Scudder,  J.  Whether  the  note  for  $1000  could  have  been 
enforced  in  equity  as  evidence  of  an  indebtedness  by  the  hus- 
band to  the  wife  during  her  life,  is  immaterial,  for  after  her 
death  he  was  entitled,  as  husband  of  his  deceased  wife,  to  ad- 
minister on  her  estate,  and  receive  any  balance  due  on  the  note, 
after  deducting  legal  charges,  under  the  Statute  of  Distribu- 
tion. The  daughters  could  have  no  legal  or  equitable  claim  on 
this  note  against  their  father  after  their  mother's  decease.  The 
giving  of  these  tv/o  sealed  promises  in  writing  to  them  by  their 
father  was  therefore  a  voluntary  act  on  his  part.  That  it  was 
just  and  meritorious  to  divide  the  amount  represented  by  the 
original  note  between  these  only  two  surviving  children  of  the 
wife,  if  it  was  her  separate  property,  and  keep  it  from  going  into 
the  general  distribution  of  the  husband's  estate  among  his  other 
children,  is  evident,  and  such  appears  to  have  been  his  purpose. 


756  ALLER   V.   ALLER.  [CHAP.  11. 

The  question  now  is,  whether  that  intention  was  legally  and 
conclusively  manifested,  so  that  it  cannot  now  be  resisted. 

This  depends  on  the  legal  construction  and  effect  of  the  in- 
strument which  was  given  by  the  father  to  his  daughter. 

It  has  been  treated  by  the  counsel  of  the  defendant  in  his 
argument  as  a  promissory  note,  and  the  -payment  was  resisted 
at  the  trial  on  the  ground  that  it  was  a  gift.  Being  a  gift  z'nier 
vivos,  and  without  any  legal  consideration,  it  was  claimed  that 
the  action  could  not  be  maintained.  But  the  instrument  is  not 
a  promissory  note,  having  the  properties  of  negotiable  paper 
by  the  law  merchant,  nor  is  it  a  simple  contract,  with  all  the 
latitude  of  inquiry  into  the  consideration  allowable  in  such  a 
case,  but  it  is  in  form  and  legal  construction  a  deed  under  seal. 
It  says  in  the  body  of  the  writing  "  as  witness  my  hand  and 
seal,"  and  a  seal  is  added  to  the  name  of  Peter  H.  Aller.  It  is 
not,  therefore,  an  open  promise  for  the  payment  of  money, 
which  is  said  to  be  the  primary  requisite  of  a  bill  or  promissory 
note,  but  it  is  closed  or  sealed,  whereby  it  loses  its  character  as 
a  commercial  instrument  and  becomes  a  specialty  governed  by 
the  rules  affecting  common  law  securities,  i  Daniell's  Neg. 
Inst.,  §§  I,  31,  34. 

It  is  not  at  this  time  necessary  to  state  the  distinction  between 
this  writing  and  corporation  bonds  and  other  securities  which 
have  been  held  to  have  the  properties  of  negotiable  paper  by 
commercial  usage.  This  is  merely  an  individual  promise  "  to 
pay  my  daughter,  Angeline  H.  Aller,  the  sum  of  $312.61,  for 
value  received,"  etc.  It  is  not  even  transferable  in  form,  and 
there  is  no  intention  shown  upon  its  face  to  make  it  other  than 
it  is  clearly  expressed  to  be,  a  sealed  promise  to  pay  money  to 
a  certain  person  or  a  debt  in  law  under  seal.  How,  then,  will 
it  be  affected  by  the  evidence  which  was  offered  to  show  that  it 
was  a  mere  voluntary  promise,  without  legal  consideration,  or, 
as  it  was  claimed,  a  gift  unexecuted  ? 

Our  statute  concerning  evidence  (Rev,,  p.  380,  §  16)  which 
enacts  that  in  any  action  upon  an  instrument  in  writing,  under 
seal,  the  defendant  in  such  action  may  plead  and  set  up  as  a 
defence  therein  fraud  in  the  consideration,  is  not  applicable,  for 
here  there  is  no  fraud  shown. 

But  it  is  said  that  the  act  of  April  6th,  1875  (Rev.,  p.  387, 
§  52),  opens  it  to  the  defence  of  want  of  sufficient  consideration, 
as  if  it  were  a  simple  contract,  and,  that  being  shown,  the  con- 
tract becomes  inoperative. 

The  statute  reads  :  "  That  in  every  action  upon  a  sealed  in- 
strument, or  where  a  set-off  is  founded  on  a  sealed  instrument, 
the  seal  thereof  shall  be  only  presumptive  evidence  of  a  suffi- 


SEC.  III.]  ALLER   V.    ALLER.  757 

cient  consideration,  which   may  be   rebutted,  as   if  such  instru- 
ment was  not  sealed,"  etc. 

Suppose  the  presumption  that  the  seal  carries  with  it,  that 
there  is  a  sufficient  consideration,  is  rebutted,  and  overctjme  by 
evidence  showing  there  was  no  such  consideration,  tlie  question 
still  remains,  whether  an  instrument  under  seal,  without  suffi-  / 
cient  consideration,  is  not  a  good  promise  and  enforceable  at 
law.  It  is  manifest  that  here  the  parties  intended  and  under- 
stood that  there  should  be  no  consideration.  The  old  man 
said,  "  Now  here,  girls,  is  a  nice  present  for  each  of  you,"  and 
so  it  was  received  by  them.  The  mischief  which  the  above 
quoted  law  was  designed  to  remedy,  was  that  where  the  parties 
intended  there  should  b^.a_ consideration,  they  were  prevented 
by  the  common  law  froni  showing  none,  if  the  contract  was 
under  seal.  But  it  would  be  going  too  far  to  say  that  the 
statute  was  intended  to  abrogate  all  voluntary  contracts,  and 
to  abolish  all  distinction  between  specialties  and  simple  con- 
tracts. 

It  will  not  do  to  hold  that  every  conveyance  of  land,  or  of 
chattels,  is  void  by  showing  that  no  sufficient  consideration 
passed  when  creditors  are  not  affected.  Nor  can  it  be  shown 
by  authority  that  an  executory  contract,  entered  into  intention-  » 
ally  and  deliberately,  and  attested  in  solemn  form  by  a  seal, 
cannot  be  enforced.  Both  by  the  civil  and  the  common  law, 
persons  were  guarded  against  haste  and  imprudence  in  entering 
into  voluntary  agreements.  The  distinction  between  ?iudum 
pactiun  2iX\6.  pactum  ziestitufn,  by  the  civil  law,  was  in  the  formality 
of  execution  and  not  in  the  fact  that  in  one  case  there  was  a 
consideration,  and  in  the  other  none,  though  the  former  term, 
as  adopted  in  the  common  law,  has  the  signification  of  a  con- 
tract without  consideration.  The  latter  was  enforced  without 
reference  to  the  consideration  because  of  the  formality  of  its 
ratification,      i  Parsons  on  Cont.  (6th  ed.)  427. 

The  opinion  of  Wilmot,  J.,  in   Pillans  v.  Van  Mierop,  3  Burr. 
1663,  is  instructive  on  this  point. 

The  early  case  of  Sharington  v.  Strotton,  Plow.  308,  gives  the 
same  cause  for  the  adoption  of  the  sealing  and  delivery  of  a 
deed.  It  says,  among  other  things,  "  Because  words  are  often- 
times spoken  by  men  unadvisedly  and  without  deliberation,  the 
law  has  provided  that  a  contract  by  words  shall  not  bind  with- 
out consideration.  And  the  reason  is,  because  it  is  by  words 
which  pass  from  men  lightly  and  inconsiderately,  but  where 
the  agreement  is  by  deed  there  is  more  time  for  deliberation, 
etc.  So  that  there  is  great  deliberation  used  in  the  making  of  ' 
deeds,  for  which  reason  they  are  received  as  a  lien  final  to  the 


^58  ALLER   V.   ALLER.  •  [CHAP  II. 

party,  and  are  adjudged  to  bind  the  party  without  examining 
upon  what  cause  or  consideration  they  were  made.  And  there- 
fore in  the  case  put  in  17  Ed.  IV.,  if  I  by  deed  promise  to  give 
you  p^2o  to  make  your  sale  de  ?wvo,  here  you  shall  have  an  action 
of  debt  upon  the  deed,  and  the  consideration  is  not  examinable, 
for  in  the  deed  there  is  sufficient  consideration — viz.,  the  will  of 
the  party  that  made  the  deed."  It  would  seem  by  this  old  law 
that  in  case  of  a  deed  the  saying  might  be  applied,  stat  pro 
ratione  voluntas. 

In  Smith  on  Contracts  the  learned  author,  after  stating  the 
strictness  of  the  rules  of  law,  that  there  must  be  a  consideration 
to  support  a  simple  contract  to  guard  persons  against  the  con- 
sequences of  their  own  imprudence,  says  :  "  The  law  does  not 
absolutely  prohibit  them  from  contracting  a  gratuitous  obliga- 
tion, for  they  may,  if  they  will,  do  so  by  deed." 

This  subject  of  the  derivation  of  terms  and  formalities  from 
the  civil  law%  and  of  the  rule  adopted  in  the  common  law,  is 
fully  described  in  Fonb.  Eq.  335,  note  a.  The  author  concludes 
by  saying  :  "If,  however,  an  agreement  be  evidenced,  by  bond 
or  other  instrument,  under  seal,  it  would  certainly  be  seriously 
mischievous  to  allow  its  consideration  to  be  disputed,  the  com- 
mon law  not  having  pointed  out  any  other  means  by  which  an 
agreement  can  be  more  solemnly  authenticated.  Every  deed, 
therefore,  in  itself  imports  a  consideration,  though  it  be  only 
the  will  of  the  maker,  and  therefore  shall  never  be  said  to  be 
mcdum pactum.''  See  also  i  Chitty  on  Cont.  (i  ith  ed.)  6  ;  Morly  v. 
Boothby,  3  Bing.  107  ;  Rann  v.  Hughes,  7  T.  R.  350,  note  a. 

These  statements  of  the  law  have  been  thus  particularly  given 
in  the  words  of  others,  because  the  significance  of  writings 
under  seal,  and  their  importance  in  our  common  law  system, 
seem  in  danger  of  being  overlooked  in  some  of  our  later  legis- 
lation. If  a  party  has  fully  and  absolutely  expressed  his  inten- 
tion in  a  writing  sealed  and  delivered,  with  the  most  solemn 
sanction  known  to  our  law,  what  should  prevent  its  execution 
where  there  is  no  fraud  or  illegality  ?  But  because  deeds  have 
been  used  to  cover  fraud  and  illegality  in  the  consideration, 
and  just  defences  have  been  often  shut  out  by  the  conclusive 
character  of  the  formality  of  sealing,  we  have  enacted  in  our 
State  the  two  recent  statutes  above  quoted.  The  one  allows 
fraud  in  the  consideration  of  instruments  under  seal  to  be  set 
up  as  defence,  the  other  takes  away  the  conclusive  evidence  of 
a  sufficient  consideration  heretofore  accorded  to  a  sealed  writ 
ing,  and  makes  it  only  presumptive  evidence.  This  does  not 
reach  the  case  of  a  voluntary  agreement,  where  there  was  no 
consideration,  and  none  intended  by  the  parties.     The  statute 


SEC.  in.]  MCMILLAN   1'.    AMES.  759 

establishes  a  new  rule  of  evidence,  by  which  the  consideration 
of  sealed  instruments  may  be  shown,  but  does  not  take  from 
them  the  effect  of  establishing  a  contract  expressing  the  inten- 
tion of  the  parties,  made  with  the  most  solemn  authentication, 
which  is  not  shown  to  be  fraudulent  or  illegal.  It  could  not 
have  been  in  the  mind  of  the  legislature  to  make  it  impossible 
for  parties  to  enter  into  such  promises  ;  and  without  a  clear 
expression  of  the  legislative  will,  not  only  as  to  the  admissi- 
bility, but  the  effect  of  such  evidence,  such  construction  should 
not  be  given  to  this  law.  Even  if  it  should  be  held  that  a  con- 
sideration is  required  to  uphold  a  deed,  yet  it  might  still  be 
implied  where  its  purpose  is  not  within  the  miscliief  which  the 
statute  was  intended  to  remedy.  It  was  certainly  not  the  inten- 
tion of  the  legislature  to  abolish  all  distinction  between  simple 
contracts  and  specialties,  for  in  the  last  clause  of  the  section 
they  say  that  all  instruments  executed  with  a  scroll,  or  other 
device  by  way  of  scroll,  shall  be  deemed  sealed  instruments. 
It  is  evident  that  they  were  to  be  continued  with  their  former 
legal  effect,  except  so  far  as  they  might  be  controlled  by  evi- 
dence affecting  their  intended  consideration. 

If  the  statute  be  anything  more  than  a  change  of  the  rules  of 
evidence  which  existed  at  the  time  the  contract  was  made,  and 
in  effect  makes  a  valuable  consideration  necessary,  where  such 
requisite  to  its  validity  did  not  exist  at  that  time,  then  the  law 
would  be  void  in  this  case,  because  it  would  impair  the  obliga- 
tion of  a  prior  contract.  This  cannot  be  done.  Cooley  on 
Const.  Lim.  288,  and  notes. 

The  rule  for  a  new  trial  should  be  discharged. 


JAMES  McMillan  v.  eli  b.  ames. 

In  the  Supreme  Court  of  Minnesota,  March  ii,  1885. 
\Reported  171  33  Mhmesota  Reports  257.] 

Plaintiff,  as  assignee  of  the  contract  set  forth  in  the  opinion, 
brought  this  action  in  the  District  Court  of  Hennepin  County, 
to  recover  damages  for  an  alleged  breach.  The  complaint  sets 
out  the  making  of  the  contract,  and  the  assignment  of  all  inter- 
est in  it  to  plaintiff,  alleges  tender  of  full  performance  on  the 
part  of  plaintiff  on  January  loth,  1884,  and  a  refusal  to  perform 
on  the  part  of  defendant,  and  asks  $7550  damages. 

On  the  trial  before  Lochren,  J.,  and  a  jury,  it  was  admitted 
that  the  market  value  of  the  premises  on  January  loth,  1884, 


^6o  McMillan  v.  ames.  [chap.  h. 

was  $11,500.  Plaintiff  offered  in  evidence  the  contract,  which 
was  objected  to  and  excluded,  and  a  verdict  was  directed  for 
defendant.     Plaintiff  appeals  from  an  order  refusing  a  new  trial. 

Scott,  Longbrake  &"  Van  Cleve,  A.  J.  Shores,  and  Eli  Torrance 
for  the  appellant. 

Babcock  6^  Davis  for  the  respondent. 

Vanderburgh,  J.  On  the  day  it  bears  date  the  defendant 
executed  and  delivered  to  James  McMillan  &  Co.  the  following 
covenant  or  agreement  under  seal,  which  was  subsequently- 
assigned  to  the  plaintiff  : 

"  Exhibit  A. 

"  I,  E.  B.  Ames,  of  Minneapolis,  Minn.,  for  the  consideration 
hereinafter  mentioned,  do  hereby  promise  and  agree  to  grant, 
bargain,  sell,  and  convey,  by  good  and  lawful  warranty  deed, 
unto  James  McMillan  &  Co.,  their  heirs  and  assigns,  in  fee 
simple,  free  from  all  incumbrances,  at  any  time  between  the 
date  of  this  instrument  and  the  third  day  of  August,  1884,  that 
the  said  James  McMillan  &  Co.  may  elect,  that  certain  real 
estate  situate  in  the  county  of  Hennepin  and  State  of  Minne- 
sota, and  described  as  follows — to  wit,  a  part  of  lots  nine  (9)  and 
ten  (10),  in  block  twenty  (20),  in  the  town  of  Minneapolis,  being 
a  tract  of  land  twenty-seven  (27)  feet  wide,  fronting  on  First 
Avenue  south,  and  extending  back  ninety-nine  (99)  feet,  together 
with  the  brick  and  stone  building  standing  thereon,  together 
with  all  the  appurtenances  thereunto  belonging. 

"  The  consideration  above  mentioned  and  referred  to  is  the 
payment  to  me  by  the  said  James  McMillan  &  Co.  of  the  sum 
of  $3500,  and  the  further  payment  of  the  taxes  duly  assessed 
upon  said  real  estate  between  the  second  day  of  August,  1879, 
and  the  date  of  the  execution  and  delivery  of  said  deed.  Said 
payments  to  be  made  at  the  time  of  the  execution  and  delivery 
of  said  deed,  unless  otherwise  agreed  to  by  said  James  McMil- 
lan &    Co.  and  myself. 

"  It  is  hereby  expressly  understood  and  agreed  that  in  case 
of  a  violation  of  the  lease  under  which  the  said  James  McMil- 
lan &  Co.  now  hold  said  real  estate,  I  am  to  be  released  from 
any  and  all  promises  contained  and  by  me  made  in  this  in- 
strument. 

"  Witness  my  hand  this  sixth  day  of  October,  1879,  the  same 
being  the  date  of  this  instrument. 

"E.  B.  Ames.     [Seal.]" 

By  the  terms  of  this  instrument,  which  is  admitted  to  have 
been  sealed  by  defendant,  he  covenanted  to  convey  the  premises 
upon  the  consideration  and  condition  of  the  payment  by  the 


SEC.    III.]  MCMILLAN   V.    AMES.  761 

covenantees  of  the  sum  named,  on  or  before  the  date  fixed  in 
the  writing.  Before  performance  on  their  part,  the  defendant 
notified  them  of  his  withdrawal  and  rescission  of  tlie  promise 
and  obligation  embraced  in  such  written  instrument,  and  there- 
after refused  the  tender  of  payment  and  offer  of  performance 
by  the  phiintiff  in  conformity  therewith,  as  alleged  in  the  com- 
plaint, and  within  the  time  limited.  On  the  trial,  it  appearing 
that  such  notice  of  rescission  had  been  given,  the  Court  rejected 
plaintiff's  offer  to  introduce  the  writing  in  evidence,  and  dis- 
missed the  action. 

The  only  question  presented  on  this  appeal  is  whether  plain- 
tiff's promise  or  obligation  was  nudu/n  pacii/m  and  presumptively 
invalid  for  want  of  a  consideration,  or  whether,  being  in  the 
nature  of  a  covenant,  the  defendant  was  bound  thereby,  sub- 
ject to  the  performance  of  the  conditions  by  the  covenantees. 

Apart  from  the  effect  of  the  seal  as  evidencing  a  consideration 
binding  the  defendant  to  hold  open  his  proposition,  or  rather 
validating  his  promise  subject  to  the  conditions  expressed  in 
the  writing,  it  is  clear  that  such  promise,  made  for  a  considera- 
tion thereafter  to  be  performed  by  the  plaintiff  at  his  election, 
would  take  effect  as  an  offer  or  proposition  merely,  but  would 
become  binding  as  a  promise  as  soon  as  accepted  by  the  per- 
formance of  the  consideration,  unless  previously  revoked  or  it 
had  otherwise  ceased  to  exist.  Langdell  on  Cont.  §  70  ;  Bos- 
ton &  M.  R.  R.  V.  Bartlett,  3  Cush.  224,  228.  In  the  case  cited 
there  was  a  proposition  to  sell  land  by  writing  not  under  seal. 
The  Court  held  the  party  at  liberty  to  withdraw  his  offer  at  any 
time  before  acceptance,  but  not  after,  within  the  appointed 
time,  because  until  acceptance  it  was  a  mere  offer,  without  a 
consideration  or  a  corresponding  promise  to  support  it,  and  the 
Court  say  :  "  Whether  wisely  or  not,  the  common  law  unyield- 
ingly insists  upon  a  consideration,  or  a  paper  with  a  seal 
attached." 

If,  however,  his  promise  is  binding  upon  the  defendant, 
because  contained  in  an  instrument  under  seal,  then  it  is  not  a 
mere  offer,  but  a  valid  promise  to  convey  the  land  upon  the 
condition  of  payment.  All  that  remained  was  performance  by 
plaintiff  within  the  time  specified  to  entitle  him  to  a  fulfilment 
of  the  covenant  to  convey.  Langdell  on  Cont.  §§  178,  179. 
As  respects  the  validity  or  obligation  of  such  unilateral  con- 
tracts, the  distinction  between  covenants  and  simple  contracts 
is  well  defined  and  established.  Anson,  Cont.  12  ;  Chit.  Cont.  5  ; 
Leake,  Cont.  146  ;  i  Smith,  Lead.  Cas.  (7th  ed.)  698  ;  Wing  v. 
Chase,  35  Me.  260  ;  Willard  v.  Tayloe,  8  Wall.  557. 

In    Pitman   v.    Woodbury,    3    Exch.    4,    11,    Parke,    B.,   says: 


762  McMillan  t.  ames.  [chap.  ii. 

"  The  cases  establish  that  a  covenantee  in  an  ordinary  inden- 
ture, who  is  a  party  to  it,  may  sue  the  covenantor,  who  executed 
it,  although  he  himself  never  did  ;  for  he  is  a  party,  although 
he  did  not  execute,  .  .  .  and  it  makes  no  difference  that  the 
covenants  of  the  defendant  are  therein  stated  to  be  in  consider- 
ation of  those  of  the  covenantee.  Of  this  there  is  no  doubt, 
nor  that  a  covenant  binds  without  consideration."  Morgan  z;. 
Pike,  14  C.  B.  473,  484  ;  Leake,  Cont.  141.  The  covenantee  in 
such  cases  may  have  the  benefit  of  the  contract,  but  subject  to 
the  conditions  and  provisos  in  the  deed.  These  obligations 
frequently  take  the  form  of  bonds,  which  is  only  another  method 
of  forming  a  contract,  in  which  a  party  binds  himself  as  if  he 
had  made  a  contract  to  perform  ;  a  consideration  being  neces- 
sarily implied  from  the  solemnity  of  the  instrument.  The  con- 
sideration of  a  sealed  instrument  may  be  inquired  into  ;  it  may 
be  shown  not  to  have  been  paid  (Bowen  v.  Bell,  20  John.  338), 
or  to  be  different  from  that  expressed — Jordan  v.  White,  20  Minn. 
77  (91)  ;  McCrea  v.  Purmort,  16  Wend.  460 — or  as  to  a  mort- 
gage that  there  is  no  debt  to  secure  (Wearse  v.  Peirce,  24  Pick, 
141),  etc.;  but,  except  for  fraud  or  illegality,  the  consideration 

\/(j  implied  from  the  seal  cannot  be  impeached  for  the  purpose  of 
r^y  I  invalidating  the  instrument  or    destroying    its   character  as  a 
specialty. 

'  I  It  is  true  that  equity  will  not  lend  its  auxiliary  remedies  to 
/  1  aid  in  the  enforcement  of  a  contract  which  is  inequitable,  or  is 
^  I  not  supported  by  a  substantial  consideration,  but  at  the  same 
time  it  will  not  on  such  grounds  interfere  to  set  it  aside.  But 
no  reason  appears  why  equity  might  not  have  decreed  specific 
performance  in  this  case  (had  the  land  not  been  sold),  because 
the  substantial  and  meritorious  consideration  required  by  the 
Court  in  such  case  would  consist  in  that  stipulated  in  the  instru- 
ment as  the  condition  of  a  conveyance,  performance  of  which 
by  the  plaintiff  would  have  been  exacted  as  a  prerequisite  to 
relief,  so  as  to  secure  to  defendant  mutuality  in  the  remedy, 
and  all  his  rights  under  the  contract.  The  inquiry  would  not, 
in  such  case,  be  directed  to  the  constructive  consideration  evi- 
denced by  the  seal,  for  a  mere  nominal  consideration  would 
have  supported  defendant's  offer  or  promise  upon  the  prescribed 
conditions.  Leake,  Cont.  17,  18  ;  Western  R.  Co.  v.  Babcock, 
6  Met.  346  ;  Yard  v.  Patton,  13  Pa.  St.  278,  285  ;  Candor's 
Appeal,  27  Pa.  St.  119. 

If,  then,  defendant's  promise  was  irrevocable  within  the  time 
limited,  plaintiff  might  certainly  seek  his  remedy  for  damages, 
upon  the  facts  alleged  in  the  pleadings,  upon  showing  perform- 
ance or  tender  thereof  on  his  part. 


SEC.  III.]  KRELL   AND    ANOTHER   T'.    CODMAN.  763 

There  is  a  growing  tendency  to  abrogate  the  distinction  be- 
tween sealed  and  unsealed  instruments  ;  in  some  States  bj- 
legislation,  in  others  to  a  limited  extent  by  usage  or  judicial 
recognition.  State  <>.  Young,  23  Minn.  551  ;  i  Pars.  Cont.  429. 
But  the  significance  of  the  seal  as  importing  a  consideration  is 
everywhere  still  recognized,  except  as  affected  by  legislation 
on  tjie  subject.  It  has  certainly  never  been  questioned  by  this 
Court.  In  Pennsylvania  the  courts  allow  a  party,  as  an  equita- 
ble defence  in  actions  upon  sealed  instruments,  to  show  a  fail- 
ure to  receive  the  consideration  contracted  for,  where  an  actual 
valuable  consideration  was  intended  to  pass,  and  furnished  the 
motive  for  entering  into  the  contract.  Candor's  Appeal,  27  Pa. 
St.  119  ;  Yard  v.  Patton,  supra.  But  whatever  the  rule  as  to 
equitable  defences  and  counterclaims  under  our  system  of  prac- 
tice may  properly  be  held  to  be  in  the  case  of  sealed  instru- 
ments, it  has  no  application,  we  think,  to  a  case  like  this,  where 
full  effect  must  be  given  to  the  seal.  Under  the  civil  law  the 
rule  is  that  a  party  making  an  offer,  and  granting  time  to 
another  in  which  to  accept  it,  is  not  at  liberty  to  withdraw  it 
within  the  appointed  time,  it  being  deemed  inequitable  to  dis- 
appoint expectations  raised  by  such  offer,  and  leave  the  party 
without  remedy.  The  common  law,  as  we  have  seen,  though 
requiring  a  consideration,  is  satisfied  with  the  evidence  thereof 
signified  by  a  seal.  Boston  &  M.  R.  R.  v.  Bartlett,  supra. 
The  same  principle  applies  to  a  release  under  seal,  which  is  con- 
clusive though  disclosing  on  its  face  a  consideration  otherwise 
insufficient.  Staples  v.  Wellington,  62  Me.  9  ;  Wing  v.  Chase, 
35  Me.  260. 

These  considerations  are  decisive  of  the  case,  and  the  order 
denying  a  new  trial  must  be  reversed. 


PAUL   K.  L.   E.  KRELL  and   Another  v.  ROBERT 
CODMAN. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 

October  24,  1891. 

[Reported  m  154  Massachusetts  Reports  454.] 

Contract  against  the  executor  of  the  will  of  Martha  G. 
Wheelwright,  upon  a  covenant  in  an  indenture  under  seal, 
dated  February  13th,  1885.  The  case  was  heard  in  January, 
1890,  by  Field,  J.,  and  reported  by  him  for  the  consideration  of 
the  full  Court,  and  was  as  follows. 


764  KRELL  AND   ANOTHER   V.    CODMAN.  [CHAP.  II. 

The  indenture  was  executed  by  "  Martha  Gerrish  Wheelwright, 
of  Roslyn  House,  Oatlands  Park,  in  the  county  of  Surrey, 
widow,  of  the  one  part,  and  Paul  Karl  Ludwig  Emil  Krell,  of 
the  same  place.  Esquire,  and  Charles  VVatkins,  of  No.  19  Oakley 
Square,  in  the  parish  of  St.  Pancras,  in  the  county  of  Middle- 
sex, Esquire,  of  the  other  part,"  and  provided  as  follows  : 
"  Whereas  the  said  Martha  Gerrish  is  desirous  of  making  some 
provision  for  Constance  Hope  Eagle,  the  adopted  child  of  the 
said  Paul  Karl  Ludwig  Emil  Krell,  and  of  his  wife,  Maria 
Augusta  Krell,  the  daughter  of  the  said  Martha  Gerrish  Wheel- 
wright, the  said  Constance  Hope  Eagle  being  now  seven  years 
of  age  and  residing  at  Roslyn  House,  Oatlands  Park,  aforesaid, 
Now  this  indenture  witnesseth  that  in  consideration  of  the  love 
and  affection  of  the  said  Martha  Gerrish  Wheelwright  for  the 
said  Constance  Hope  Eagle,  and  for  divers  other  good  causes 
and  considerations,  the  said  Martha  Gerrish  Wheelwright  doth 
hereby  covenant  with  the  said  Paul  Karl  Ludwig  Emil  Krell 
and  Charles  Watkins,  or  the  survivor  of  them  or  the  executors 
or  administrators  of  such  survivor,  or  other  the  trustees  or 
trustee  for  the  time  being  of  these  presents  (hereinafter  called 
the  trustees  or  trustee),  that,  in  case  the  said  Constance  Hope 
Eagle  shall  survive  her  the  said  Martha  Gerrish  Wheelwright, 
the  executors  or  administrators  of  her  the  said  Martha  Gerrish 
Wheelwright  shall,  within  six  calendar  months  after  her  death, 
pay  to  the  trustees  or  trustee  the  sum  of  ^2500,  with  interest 
thereon  at  the  rate  of  4  per  cent  per  annum  from  the  day  of  her 
death,  provided  always  that  the  said  Martha  Gerrish  Wheel- 
wright shall  be  at  liberty  to  pay  the  said  sum  of  ^2500,  or  any 
part  thereof,  to  the  trustees  or  trustee  at  any  time  during  her 
lifetime."  The  indenture  then  provided  that  the  trustees 
should  invest  the  sum  above  named  only  in  English  or  Colonial 
securities,  and  should  hold  the  same  for  the  benefit  of  Con- 
stance Hope  Eagle  ;  but  it  was  further  agreed  that,  "  if  the  said 
Constance  Hope  Eagle  shall  not  survive  the  said  Martha  Ger- 
rish Wheelwright,  or  surviving  her  shall  not  live  to  attain  the 
age  of  twenty-one  years,  nor  to  marry  under  that  age,  then 
subject  to  the  trusts  and  powers  hereinbefore  declared  and  con- 
tained, or  by  law  vested  in  the  trustees  or  trustee,  shall  stand 
possessed  of  the  trust  premises  and  the  income  thereof,  in  trust 
for  the  said  Martha  Gerrish  Wheelwright,  her  executors,  admin- 
istrators, and  assigns  absolutely." 

This  indenture  was  drawn  and  settled  on  behalf  of  all  parties 
by  a  firm  of  English  solicitors,  and  executed  at  Walton-on- 
Thames,  Surrey,  England.  By  the  law  of  England  a  covenant 
such  as  that  contained  in  this  instrument  constitutes  a  debt  of 


SEC.  III. J      KRELL  AND  ANOTHER  V.    CODMAN.  765 

the  covenantor  legally  chargeable  upon  his  or  her  estate,  rank- 
ing after  debts  for  value,  but  before  legacies.  At  the  date  of 
the  indenture  Mrs.  Wheelwright  was  living  with  her  daughter, 
who  was  the  wife  of  the  first-named  plaintiff,  and  the  child, 
Constance  Hope  Eagle,  was  living  w'ith  and  supported  by  Mr. 
and  Mrs.  Krell,  but  was  never  legally  adopted  by  them.  She 
was  still  a  minor,  and  lived  with  them  in  England.  Mrs.  Wheel- 
wright died  on  August  30th,  1888,  and  at  the  time  of  her  death 
was  domiciled  in  Newburyport  in  this  Commonwealth,  and  her 
will,  which  was  executed  in  this  Commonwealth  on  October 
loth,  1881,  was  duly  proved  here. 

The  judge  found  that,  at  the  time  Mrs.  Wheelwright  exe- 
cuted the  indenture,  her  place  of  residence  and  home  were  in 
England,  but  her  political  domicile  was  in  Massachusetts.  If 
the  plaintiffs  were  entitled  to  maintain  the  action,  judgment  was 
to  be  entered  for  them  for  the  sum  named  in  the  indenture, 
with  interest  ;  otherwise,  judgment  was  to  be  entered  for  the 
defendant. 

The  case  was  argued  at  the  bar  in  November,  1890,  and  after- 
ward, in  October,  1891,  was  submitted  on  the  briefs  to  all  the 
judges  except  Field,  C.J.,  and  Morton,  J. 

C.  K.  Cobb  {^F.  E.  Brooks  with  him)  for  the  plaintiffs. 

R.  Codman,  Jr.,  for  the  defendant. 

Holmes,  J.  This  is  an  action  on  a  voluntary  covenant  in  an 
'ndenture  under  seal,  executed  by  the  defendant's  testatrix  in 
England,  that  her  executors,  within  six  months  after  her  death, 
should  pay  to  the  plaintiffs,  upon  certain  trusts,  the  sum  of 
^^2500,  with  interest  at  4  per  cent  from  the  day  of  her  death. 

It  is  agreed  that  by  the  law  of  England  such  a  covenant  con- 
stitutes a  debt  of  the  covenantor  legally  chargeable  upon  his  or 
her  estate,  ranking  after  debts  for  value,  but  before  legacies. 
But  it  is  contended  by  the  defendant  that  a  similar  instrument 
executed  here  would  be  void.  The  testatrix  died  domiciled  in 
Massachusetts,  and  the  only  question  is  whether  the  covenant 
can  be  enforced  here.  If  a  similar  covenant  made  here  would 
be  enforced  in  our  courts,  the  plaintiffs  are  entitled  to  recover, 
and  in  the  view  which  we  take  on  that  question  it  is  needless  to 
examine  with  nicety  how  far  the  case  is  to  be  governed  by  the 
English  law  as  to  domestic  covenants,  and  how  far  by  that  of 
Massachusetts. 

In  our  opinion  such  a  covenant  as  the  present  is  not  contrary 
to  the  policy  of  our  laws,  and  could  be  enforced  here  if  made 
in  this  State.  If  it  were  a  contract  upon  valuable  considera- 
tion, there  is  no  doubt  it  would  be  binding.  Parker  v.  Coburn, 
10  Allen,  82.     We  presume  that,  in  the  absence  of  fraud,  oppres- 


766  KRELL  AND   ANOTHER   V.    CODMAN.  [CHAP.  II. 

sion,  or  unconscionableness,  the  courts  would  not  inquire  into 
the  amount  of  such  consideration.  Parish  v.  Stone,  14  Pick. 
198,  207.  This  being  so,  consideration  is  as  much  a  form  as  a 
seal.  It  would  be  anomalous  to  say  that  a  covenant  in  all  other 
respects  unquestionably  valid  and  binding  (Comstock  v.  Son, 
ante,  389,  and  Mather  v.  Corliss,  103  Mass.  568,  571)  was  void 
as  contravening  the  policy  of  our  Statute  of  Wills,  but  that  a 
parol  contract  to  do  the  same  thing  in  consideration  of  a  bushel 
of  wheat  was  good.  So,  again,  until  lately  an  oral  contract 
founded  on  a  sufficient  consideration  to  make  a  certain  pro- 
vision by  will  for  ^  particular  person  was  valid.  Wellington  v. 
Apthorp,  145  Mass.  69.  Now,  by  statute,  no  agreement  of  that 
sort  shall  be  binding  unless  such  agreement  is  in  writing,  signed 
by  the  party  whose  executor  is  sought  to  be  charged,  or  by  an 
authorized  agent.  St.  1888,  ch.  372.  Again,  it  would  be  going 
a  good  way  to  say  by  construction  that  a  covenant  did  not 
satisfy  this  statute. 

The  truth  is,  that  the  policy  of  the  law  requiring  three  wit- 
nesses to  a  will  has  little  application  to  a  contract.  A  will  is 
an  ambulatory  instrument,  the  contents  of  which  are  not  neces- 
sarily communicated  to  any  one  before  the  testator's  death.  It 
is  this  fact  which  makes  witnesses  peculiarly  necessary  to  estab- 
lish that  the  document  offered  for  probate  was  executed  by  the 
testator  as  a  final  disposition  of  his  property.  But  a  contract 
which  is  put  into  the  hands  of  the  adverse  party,  and  from 
which  the  contractor  cannot  withdraw,  stands  differently.  See 
Perry  v.  Cross,  132  Mass.  454,  456-457.  The  moment  it  is 
admitted  that  some  contracts  which  are  to  be  performed  after 
the  testator's  death  are  valid  without  three  witnesses,  a  distinc- 
tion based  on  the  presence  or  absence  of  a  valuable  considera- 
tion becomes  impossible  with  reference  to  the  objection  which  we 
are  considering.  A  formal  instrument  like  the  present,  drawn 
up  by  lawyers  and  executed  in  the  most  solemn  form  known  to 
the  law,  is  less  likely  to  be  a  vehicle  for  fraud  than  a  parol  con- 
tract based  on  a  technical  detriment  to  the  promisee.  Of  course, 
we  are  not  now  speaking  of  the  rank  of  such  contracts  inter  esse. 
Stone  V.  Gerrish,  i  Allen,  175,  cited  by  the  defendant,  contains 
some  ambiguous  expressions,  but  was  decided  on  the  ground 
that  the  instrument  did  not  purport  to  be  and  was  not  a  con- 
tract. Cover  V.  Stem,  67  Md.  449  was  to  like  effect.  The  pres- 
ent instrument  indisputably  is  a  contract.  It  was  drawn  in 
English  form  by  English  lawyers,  and  must  be  construed  by 
English  law.  So  construed,  it  created  a  debt  on  a  contingency 
from  the  covenantor  herself,  which  if  she  had  gone  into  bank- 
ruptcy would  have  been  provable  against  her.     Ex  parte  Tindal, 


SEC.  III.]  KKELL   AND    ANOTHER   7:    CODMAN.  767 

8  Bing.  402  ;  S.  C.  I  D.  &  Ch.  291,  and  Mont.  375,  462.  Rob- 
son,  Bankruptcy  (5th  ed.),  274.  The  cases  of  Parish  71.  Stone, 
14  Pick.  198  and  Warren  v.  Durfee,  126  Mass.  338,  were  actions 
on  promissory  notes,  and  were  decided  on  the  ground  of  a  total 
or  partial  want  of  consideration. 

There  is  no  question  here  of  any  attempt  to  evade  or  defeat 
rights  of  third  persons,  which  would  have  been  paramount  had 
the  covenantor  left  the  sum  in  question  as  a  legacy  by  will. 
There  is  no  ground  for  suggesting  an  intent  to  evade  the  pro- 
visions of  our  law  regulating  the  execution  of  last  wills,  if  such 
intent  could  be  material  when  an  otherwise  binding  contract 
was  made.  See  Stone  z;.  Hackett,  12  Gray,  227,  232-233.  There 
was  simply  an  intent  to  make  a  more  binding  and  irrevocable 
provision  than  a  legacy  could  be,  and  we  see  no  reason  why  it 
should  not  succeed. 

Judgment  for  the  plaintiffs. 


F»ARX   II. 

OPERATION    OF    CONTRACTS. 


CHAPTER    III. 
RIGHTS   AND    LIABILITIES    OF   THIRD    PERSONS. 

Section  I. — Beneficiaries. 


DUTTON  AND  WIFE  v.   POOLE. 

In  the  King's  Bench,  Michaelmas  Term,  1677. 

[Reported  in  2  Levinz  211.] 

Assumpsit,  and  declares  that  the  father  of  the  plaintiff's  wife 
being  seized  of  a  wood  which  he  intended  to  sell  to  raise  por- 
tions for  younger  children,  the  defendant  being  his  heir,  in  con- 
sideration the  father  would  forbear  to  sell  it  at  his  request, 
promised  the  father  to  pay  his  daughter,  now  the  plaintiff's 
wife,  ^1000,  and  avers  that  the  father  at  his  request  forbore, 
but  the  defendant  had  not  paid  the  ^1000.  After  verdict  for 
the  plaintiff  upon  non  assumpsit,  it  was  moved  in  arrest  of  judg- 
ment, that  the  action  ought  not  to  be  brought  by  the  daughter, 
but  by  the  father  ;  or  if  the  father  be  dead,  by  his  executors  ; 
for  the  promise  was  made  to  the  father,  and  the  daughter  is 
neither  privy  nor  interested  in  the  consideration,  nothing  being 
due  to  her.  Also  the  father,  notwithstanding  this  agreement 
with  the  son,  might  have  cut  down  the  wood,  and  then  there 
was  no  remedy  for  the  son,  nor  could  the  daughter  have  re- 
leased the  promise,  and  therefore  she  cannot  have  an  action 
against  him  for  not  performing  the  promise,  and  divers  cases 
were  cited  for  the  defendant,  as  Yelv.  Rippon  v.  Norton, 
Hawes  v.  Leader,  Starky  v.  Milner,  i  Roll.  31,  32,  Sty.  296,  and 
a  case  lately  resolved  in  Com.  Banc,  inter  Norris  &  Pine,  intrat. 
Hill.  22  and  23  Car.  2,  1538,  where  the  case  was,  "  If  you  will 
marry  me,  I  will  pay  your  cliildren  so  much,"  and  the  action 
being  brought  by  the  children,  adjudged  it  lay  not.  On  the 
'  The  cases  relating  to  the  doctrine  of  novation  will  be  found  infra. — Ed. 


7;ro  BUTTON   AND   WIFE   V.    POOLE.  [chap.  III. 

other  side  it  was  said,  if  a  man  deliver  goods  or  money  to  H.  to 
deliver  or  pay  to  B.,  B.  may  have  an  action,  because  he  is  to 
have  the  benefit  of  the  bailment,  so  here  the  daughter  is  to  have 
the  benefit  of  the  promise.  So  if  a  man  should  say,  "  Give  me 
a  horse,  I  will  give  your  son  ^lo,"  the  son  may  bring  the 
action,  because  the  gift  was  upon  consideration  of  a  profit  to 
the  son  ;  and  the  father  is  obliged  by  natural  affection  to  pro- 
vide for  his  children,  for  which  cause  affection  to  children  is 
sufficient  to  raise  a  use  to  them  out  of  the  father's  estate  ;  and 
therefore  the  daughter  had  an  interest  in  the  consideration  and 
in  the  promise,  and  the  son  had  a  benefit  by  this  agreement,  for 
by  this  means  he  hath  the  wood  and  the  daughter  is  without  a 
portion,  which  otherwise  in  all  probability  the  son  would 
have  been  left  to  pay,  if  the  wood  had  not  been  cut  down,  nor 
this  agreement  between  him  and  his  father,  and  for  authorities 
of  this  side  were  cited  i  Roll.  Ab.  31,  Oldman  v.  Bateman,  and 
ibid.  32  ;  Starky  v.  Meade.  Upon  the  first  argument  Wylde 
and  Jones,  JJ.,  seemed  to  think  that  the  action  ought  to  be 
brought  by  the  father  and  his  executors,  though  for  the  benefit 
of  the  daughter,  and  not  by  the  daughter,  being  not  privy  to 
the  promise  or  consideration.  Twysden  and  Rainsford  seemed 
contra,  and  afterward  two  new  judges  being  made,  scil  Scroggs, 
C.J.,  in  lieu  of  Rainsford,  and  Dolbin  in  lieu  of  Twysden,  the 
case  was  argued  again  upon  the  reasons  aforesaid  ;  and  now 
Scroggs,  C.J.,  said  that  there  was  such  apparent  consideration 
of  affection  from  the  father  to  his  children,  for  whom  nature 
obliges  him  to  provide,  that  the  consideration  and  promise  to 
the  father  may  well  extend  to  the  children,  and  he  and  Jones 
remembered  the  case  of  Norris  &  Pine,  and  that  it  was  adjudged 
as  aforesaid.  But  Scroggs  said  he  was  then  and  still  is  of  opin- 
ion contrary  to  that  judgment.  Dolben,  J.,  concurred  with  him 
that  the  daughter  might  bring  the  action,  Jones  &  Wylde  hcesita- 
bant.  But  next  day  they  also  agreed  to  the  opinion  of  the  Chief 
Justice  and  Dolben,  and  so  judgment  was  given  for  the  plain- 
tiff, for  the  son  hath  the  benefit  by  having  of  the  wood,  and  the 
.daughter  hath  lost  her  portion  by  this  means.  And  now  Jones 
(said  he  must  confess  he  was  never  well  satisfied  with  the  judg- 
ment in  Norris  &  Pine's  Case,  but  being  it  was  resolved,  he  was 
loth  to  give  his  opinion  so  suddenly  against  it.  And  note  upon 
this  judgment  error  was  immediately  brought,  and  Trin.  31  Car. 
2  it  was  affirmed  in  the  Exchequer  Chamber. 


SEC.  I.]  PRICE   V.    EASTON.  77 1 

JOHN    PRICE  V.   EASTON. 

In  the  King's  Bench,  January   17,  1S33. 

\Rcportcd  in  4  Barnciuall  &^  Adolphus  433.] 

Declaration  stated  that  one  William  Price  was  indebted  to 
the  plaintiff  in  the  sum  of  ;^i3,  being  the  balance  of  a  larger 
sum  due  for  the  price  of  a  certain  timber  carriage  sold  and  de- 
livered to  him  ;  and  that  the  defendant,  in  consideration  thereof, 
and  in  consideration  that  the  said  William  Price,  at  the  request 
of  the  defendant,  had  undertaken  and  faithfully  promised  the 
defendant  to  work  for  him,  the  defendant,  at  certain  wages 
agreed  upon  between  them,  and  in  consideration  of  William 
Price  leaving  the  amount  which  might  be  earned  by  him  in  the 
defendant's  hands,  he,  the  defendant,  undertook  and  promised 
to  pay  the  plaintiff  the  sum  of  J[,\z.  Averment  that  William 
Price  did  work  for  the  defendant,  and  earned  a  large  sum  of 
money,  and  left  the  same  in  his,  defendant's  hands.  Breach, 
non-payment  to  the  plaintiff  of  J[^\2,-  Plea,  non  assumpsit.  The 
plaintiff  having  obtained  a  verdict,  a  rule  nisi  vjSiS  obtained  by 
Campbell  for  arresting  the  judgment,  on  the  ground  that  the 
plaintiff  was  a  mere  stranger  to  the  consideration  ;  and  he  cited 
Bourne  v.  Mason,*  and  Crow  v.  Rogers  f  and  distinguished  the 
case  from  Button  v.  Poole, ^  where  tenant  in  fee-simple  being 
about  to  cut  down  timber  for  his  daughter's  portion,  the  de- 
fendant, his  heir  at  law,  in  consideration  of  his  forbearing  so  to 
do,  promised  to  pay  a  sum  of  money  to  the  daughter,  and  the 
action  by  the  husband  of  the  daughter  was  held  to  be  well 
brought  ;  but  there,  it  was  said,  there  was  privity  by  blood,  and 
the  daughter  was  prejudiced  by  loss  of  her  portion. 

Justice  now  showed  cause. 

Campbell,  Solicitor-General  {Talford  with  him),  contra,  was 
stopped  by  the  Court. 

Denman,  C.J.  I  think  the  declaration  cannot  be  supported, 
as  it  does  not  show  any  consideration  for  the  promise  moving 
from  the  plaintiff  to  the  defendant. 

Littledale,  J.  No  privity  is  shown  between  the  plaintiff 
and  defendant.  This  case  is  precisely  like  Crow  v.  Rogers,* 
and  must  be  governed  by  it. 

Taunton,  J.  It  is  consistent  with  all  the  matter  alleged  in 
the  declaration,  that  the  plaintiff  may  have  been  entirely  igno- 

'  I  Vent.  6.  '  I  Str.  592.  '  2  Lev.  2.10.  ••  1  Str.  592. 


^^2  MELLEN    V.    WHIPPLE.  [CHAP.  III. 

rant  of  the  arrangement  between  William  Price  and  the  de- 
fendant. 

Patteson,  J.  After  verdict,  the  Court  can  only  intend  that 
all  matters  were  proved  which  were  requisite  to  support  the 
allegations  in  the  declaration,  or  what  is  necessarily  to  be  im- 
plied from  them.  Now  it  is  quite  clear  that  the  allegations  in 
this  declaration  are  not  sufficient  to  show  a  right  of  action  in 
the  plaintiff.  There  is  no  promise  to  the  plaintiff  alleged.  The 
rule  for  arresting  the  judgment  must  be  made  absolute. 

Rule  absolute. 


SARAH    MELLEN,  Administratrix,  v.   SHILOMETH    S. 

WHIPPLE. 

In  the  Supreme  Judicial  Court  of   Massachusetts,   March 

Term,   1854. 

{^Reported  in  i  Gray  3 17. J 

Action  of  contract,  brought  by  the  administratrix  of  Michael 
Mellen,  on  December  20th,  185 1.  The  declaration  avers  that 
"  the  defendant  is  indebted  to  the  plaintiff  for  the  following 
cause  of  action  :  On  June  ist,  1844,  one  John  M.  Rollins,  for  a 
good  and  sufficient  consideration,  made  and  delivered  to 
Charles  Ellis  and  John  M.  Mayo  (then  partners  under  the  firm 
of  Ellis  &  Mayo)  his  note  for  the  sum  of  $500,  payable  to  said 
Ellis  &  Mayo  or  order  in  three  years  from  date,  with  interest 
thereon  at  the  rate  of  6  per  cent  per  annum,  payable  semi- 
annually ;  and  also  made  to  said  payees,  to  hold  to  themselves, 
their  heirs  and  assigns,  as  security  for  the  payment  of  said 
note,  a  mortgage  deed  of  the  same  date,  of  a  certain  lot  of  land 
situated  at  the  corner  of  Curve  Street  and  Harrison  Avenue  in 
Boston,  and  more  particularly  described  in  said  deeds.  Said 
John  M.  Rollins  afterward,  to  wit,  on  April  8th,  1845,  by  his 
deed  of  that  date,  conveyed  the  equity  of  redemption  of  said 
estate  to  Shilometh  S.  Whipple,  the  defendant  ;  and  said  deed 
contained  the  following  clause  :  '  The  said  granted  premises 
are  subject  to  a  mortgage  for  $500  with  interest  ;  said  interest 
payable  semi-annually  ;  which  mortgage,  with  the  note  for 
which  it  was  given,  the  said  Whipple  is  to  assume  and  cancel.' 
Said  Whipple  accepted  said  deed,  entered  upon  the  said  estate, 
and  paid  the  interest  on  said  note  to  the  said  mortgagees  and 
their  assigns  to  June  ist,  1848  ;  and  said  Michael  Mellen,  the 
plaintiff's  intestate,  in  his  lifetime  became,  by  regular  assign- 


SEC.  I.]  MELLEN   V.    WHIPPLE.  773 

ment,  transfer,  endorsement  and  deliver)-,  for  valuable  consid- 
eration, possessed  of  said  mortgage  and  the  note  for  §500 
secured  thereby  ;  and  said  Whi[)ple  became  by  law  indebted  to 
said  intestate  in  the  amount  of  said  note  ;  and  said  Michael 
Mellen  has  since  deceased,  and  the  plaintiff  was  duly  appointed 
administratrix  of  his  estate  ;  and  the  said  Whipple  is  now  justly 
indebted  to  the  plaintiff  for  the  amount  of  said  note  of  $500  and 
interest  thereon  from  June  ist,  184S  ;  and  promised  the  plain- 
tiff to  pay  the  same  ;  yet,  though  often  requested,  has  not  paid 
the  same."  To  this  declaration  the  defendant  demurs,  "and 
alleges  and  assigns  for  cause  of  this  demurrer,  that  the  declara- 
tion does  not  sufficiently  set  forth  an}'  legal  cause  of  action." 

Joel  P.  Bishop  for  the  defendant. 

E.  F.  Head  ior  the  plaintiff. 

Metcalf,  J.  According  to  the  decisions  in  Goodwin  v.  Gil- 
bert, 9  Mass.  510  ;  Pike  v.  Brown,  7  Cush.  133,  and  some  inter- 
mediate cases,  the  declaration  now  before  us  shows  an  agree- 
ment between  Rollins  and  the  defendant,  for  the  non-perform- 
ance of  which  Rollins  might  maintain  an  action.  The  question 
raised  by  this  demurrer  is,  whether  an  action  for  tlie  non-per- 
formance of  that  agreement  can   be  maintained  by  the  plaintiff. 

The  counsel  for  the  plaintiff,  in  his  brief,  puts  the  case  upon 
this  ground  :  "  On  a  promise  not  under  seal,  made  by  A.  to  B., 
for  a  good  consideration,  to  pay  B.'s  debt  to  C,  C.  may  sue  A." 
Lord  Holt,  in  Yard  v.  Eland,  i  Ld.  Raym.  368,  and  Buller,  J., 
in  Marchington  v.  Vernon,  i  Bos.  &  Pul.  xoi,  note,  used  nearly 
the  same  language  ;  and  it  has  been  transferred  into  various 
text-books,  as  if  it  were  a  general  rule  of  law.  But  it  is  no 
more  true,  as  a  general  rule,  than  another  maxim,  often  found 
in  the  books,  to  wit,  that  a  moral  obligation  is  a  sufficient  con- 
sideration to  support  an  express  promise.  Both  maxims  require 
great  modification,  because  each  expresses  rather  an  exception 
to  a  general  rule  than  the  rule  itself.  And  the  needed  modi- 
fication of  the  latter  maxim  has  been  authoritatively  made,  and 
is  now  well  understood.  3  Bos.  &  Pul.  249,  note  ;  Mills  ?'. 
Wyman,  3  Pick.  207  ;  Smith  v.  Ware,  13  Johns.  259  ;  2  Greenl. 
Ev.  §  107.  But  the  limitations  of  the  maxim  on  which  the 
plaintiff  relies  are  not  so  clearly  established.  By  the  recent 
decisions  of  the  English  courts  its  operation  is  restricted  within 
narrower  limits  than  formerly,  and  tlie  general  rule,  to  which 
it  is  an  exception,  is  now  more  strictly  enforced.  That  general 
rule  is,  and  always  has  been,  that  a  plaintiff,  in  an  action  on  a 
simple  contract,  must  be  the  person  from  whom  the  considera-/ 
tion  of  the  contract  actually  moved,  and  that  a  stranger  to  the 
consideration  cannot  sue  on   the  contract.     The  rule  is  some- 


774  MELLEX   V.    WHIPPLE.  [cHAP.  III. 

times  thus  expressed.  There  must  be  a  privity  of  contract 
between  the  plaintiff  and  defendant,  in  order  to  render  the  de- 
fendant liable  to  an  action  by  the  plaintiff  on  the  contract. 
Crow  r.  Rogers,  i  Stra,  592  ;  Ross  v.  Milne,  12  Leigh,  204  ; 
Morrison  7'.  Beckey,  6  Watts,  349  ;  i  Selw.  N.  P.  (nth  ed.)  49. 
The  cases  which  form  exceptions  to  this  rule  are  included  in 
the  maxim  on  which  the  plaintiff  attempts  to  support  this 
action.  We  shall  not  undertake  to  classify  all  these  exceptions 
which  are  found  in  the  English  and  American  decisions.  It 
will  be  sufficient  for  the  determination  of  this  case  to  mention 
three  distinct  classes,  which  comprise  all  the  cases  on  this 
point  that  have  been  decided  in  this  commonwealth,  and  relied 
on  by  the  plaintiff's  counsel  in  argument. 

I.  Indebitatus  assumpsit  for  money  had  and  received  can  be 
maintained,  in  various  instances,  where  there  is  no  actual  privity 
of  contract  between  the  plaintiff  and  defendant,  and  where  the 
consideration  does  not  move  from  the  plaintiff.  In  some  actions 
of  this  kind  a  recovery  has  been  had,  where  the  promise  was  to 
a  third  person  for  the  benefit  of  the  plaintiff  ;  such  action  being 
an  equitable  one  that  can  be  supported  by  showing  that  the 
defendant  has  in  his  hands  money  which,  in  equity  and  good 
conscience,  belongs  to  the  plaintiff,  without  showing  a  direct 
consideration  moving  from  him,  or  a  privity  of  contract  between 
him  and  the  defendant. 

Most  of  the  cases  in  this  first  class  are  those  in  which  A.  has 
put  money  or  property  into  B.'s  hands  as  a  fund  from  which 
A.'s  creditors  are  to  be  paid,  and  B.  has  promised,  either  ex- 
pressly or  by  implication  from  his  acceptance  of  the  money  or 
property  without  objection  to  the  terms  on  which  it  was  deliv- 
ered to  him,  to  pay  such  creditors.  In  such  cases  the  creditors 
have  maintained  actions  against  the  holder  of  the  fund.  Dis- 
born  V.  Denaby,  i  D'Anv.  Ab.  64  ;  Starkey  v.  Mill,  Style,  296  ; 
Ellwood  V.  Monk,  5  Wend.  235  ;  Delaware  &  Hudson  Canal 
Co.  V.  Westchester  County  Bank,  4  Denio,  97  ;  Fleming  v. 
Alter,  7  S.  &  R.  295  ;  Beers  v.  Robinson,  9  Barr,  229.  The 
cases  in  Massachusetts,  which  clearly  fall  into  this  class,  are 
Arnold  v.  Lyman,  17  Mass.  400,  recognized  in  Fitch  v.  Chand- 
ler, 4  Cush.  255  ;  Hall  v.  Marston,  17  Mass.  575,  and  Felch  v. 
Taylor  13,  Pick.  133.  On  close  examination  the  case  of  Car- 
negie and  Another  v.  Morrison  and  Another,  2  Met.  381,  will 
be  found  to  belong  to  the  same  class.  The  Chief  Justice  there 
said  :  "  Bradford  was  indebted  to  the  plaintiffs,  and  was  de- 
sirous of  paying  them.  He  had  funds,  either  in  cash  or  credit, 
with  the  defendants,  and  entered  into  a  contract  with  them  to 
pay  a  sum  of  money  for  him  to  the  plaintiffs.     And  upon  the 


SEC.  1.]  MELLEN    V.    WlIIl'PLE,  775 

faith  of  that  undertaking  he  forbore  to  adopt  other  measures 
to  pay  the  plaintiffs'  debt." 

By  the  recent  English  decisions,  however,  one  to  whom  money 
is  transmitted,  to  be  paid  to  a  third  person,  is  not  liable  to  an 
action  by  that  person,  unless  he  has  agreed  to  hold  it  for  him. 
And  such  was  the  opinion  of  Spencer,  J.,  in  Weston  v.  Barker, 
12  Johns.  282.  See  the  English  cases  collected  in  i  Archb. 
N.  P.  (Amer.  ed.  184S)  121- 125. 

2.  Cases  where  promises  have  been  made  to  a  father  or  uncle, 
for  the  benefit  of  a  child  or  nephew,  form  a  second  class,  in 
which  the  person  for  whose  benefit  the  promise  was  made  has 
maintained  an  action  for  the  breach  of  it.  The  nearness  of  the 
relation  between  the  promisee  and  him  for  whose  benefit  the 
promise  was  made,  has  been  sometimes  'assigned  as  a  reason 
for  these  decisions.  And  though  different  opinions,  both  as  to 
the  correctness  of  the  decisions,  and  as  to  this  reason  for  them, 
have  often  been  expressed  by  English  judges,  yet  the  decisions 
themselves  have  never  been  overruled,  but  are  still  regarded  as 
settled  law.  Button  v.  Pool,  i  Vent.  318  is  a  familiarly  known 
case  of  this  kind,  in  which  the  defendant  promised  a  father, 
who  was  about  to  fell  timber  for  the  purpose  of  raising  a  por- 
tion for  his  daughter,  that  if  he  would  forbear  to  fell  it  the  de- 
fendant would  pay  the  daughter  ^1000.  The  daughter  main- 
tained an  action  on  this  promise.  Several  like  decisions  had 
been  previously  made.  Rookwood's  Case,  Cro.  Eliz.  164  ; 
Oldham  v.  Bateman,  i  Rol.  Ab.  31  ;  Provender  z/.  Wood,  Hetl. 
30  ;  Thomas's  Case,  Style,  461  ;  Bell  v.  Chaplain,  Hardr.  321. 
These  cases  support  the  decision  of  this  Court  in  Felton  v. 
Dickinson,  10  Mass.  287. 

3.  The  last  case  in  this  commonwealth,  which  was  cited  in 
support  of  the  present  action,  is  Brewer  v.  Dyer,  7  Cush.  337. 
In  that  case  the  defendant  gave  to  the  lessee  of  a  shop  a  written 
promise  to  take  the  lease  and  pay  to  the  lessor  the  rent,  with 
the  taxes,  according  to  the  terms  of  the  lease.  The  defendant 
entered  into  possession  of  the  shop  with  the  knowledge  of  the 
lessor,  and  paid  the  rent  to  him  for  a  year,  and  then  left  the 
shop.  And  it  was  decided  that  he  was  liable  to  the  lessor  for 
the  subsequently  accruing  rent  and  for  the  taxes  on  his  promise 
to  the  lessee. 

Very  clearly  the  case  at  bar  is  not  within  either  of  these 
classes  of  decisions.  The  defendant  has  no  money  which  in 
equity  and  good  conscience  belongs  to  the  plaintiff.  No  funds 
of  RoUins's,  either  in  money,  property,  or  credit,  have  been 
put  into  the  defendant's  hands  for  the  purpose  of  meeting  the 
plaintiff's  claim  on  Rollins.     The  sale  of   the  equity  of  redemp- 


JJ^  MELLEN   V.    WHIPPLE.  [cHAP.  III. 

tion  to  the  defendant  did  not  lessen  the  plaintiff's  security  for 
the  mortgage  debt  which  Rollins  owed  her  intestate,  for  that 
equity  could  not  have  been  taken  toward  payment  of  that  debt. 
Atkins  V.  Sawyer,  i  Pick.  351.  There  was  no  nearness  of  rela- 
tion between  Rollins  and  the  plaintiff's  intestate.  Nor  has  the 
defendant  had  the  use  and  occupation  of  the  land  of  the  plain- 
tiff or  of  her  intestate  under  a  promise  or  under  any  legal  liabil- 
ity to  pay  rent  for  it. 

The  plaintiff's  claim  is  not  supported  by  any  known  decision 
of  any  court.  It  must,  therefore,  fall  under  the  general  rule  of 
law  already  stated,  and  not  within  any  exception  to  that  rule. 
See  2  Walford  on  Parties,  1143-44  ;  Hammond  on  Parties,  6-15. 
There  was  no  privity  of  contract  between  the  plaintiff's  intes- 
tate and  the  defendafit,  nor  did  the  consideration  of  the  de- 
fendant's promise  move  from  her  intestate.  Rollins  sold  only 
an  equity  of  redemption  to  the  defendant,  leaving  the  estate  ia 
fee  in  the  mortgagee.  The  stipulation  in  the  deed  of  the  equity, 
that  the  defendant  should  pay  the  mortgage  notes,  was  a  matter 
exclusively  between  the  two  parties  to  that  deed,  and  is  nothing 
more  than  the  law  would  require  of  the  defendant  in  order  that 
he  might  derive  any  benefit  from  his  purchase  of  the  equity. 
The  plaintiff  still  has  the  estate  and  also  Rollins's  personal  re- 
sponsibility to  secure  the  mortgage  debt. 

We  have  not  deemed  it  necessary  or  useful  to  examine  the 
doctrine  on  which  the  plaintiff  relies,  any  further  than  was  re- 
quired for  the  purpose  of  showing  that  neither  the  authorities 
cited  by  him  nor  any  others  that  we  can  find  sustain  this  action. 
And  we  have  not  inquired  whether  there  is  a  difference  in  the 
application  of  that  doctrine  between  an  express  promise  by  the 
defendant  to  Rollins,  to  pay  the  mortgage  notes,  and  a  promise 
by  implication  from  the  defendant's  acceptance  of  the  deed 
conveying  the  equity,  but  we  have  proceeded  on  an  assumption, 
that  there  is  no  such  difference. 

The  declaration  closes  with  an  averment  that  the  defendant 
became  by  law  indebted  to  the  plaintiff's  intestate  in  the  amount 
of  the  note  for  $500,  "  and  promised  the  plaintiff  to  pay  the 
same."  If  this  is  to  be  taken,  on  demurrer,  to  be  an  express 
promise  to  the  plaintiff,  still  it  cannot  help  the  case,  because  it 
was  void  for  want  of  consideration. 

Demurrer  sustained. 


SEC.  I.]  LAWRENCE   V.    FOX.  y^y 


LAWRENCE  v.   FOX. 

In  the  Court  of   Appeals   of    New  York,  December  Term, 

1859. 

\^Re ported  in  20  Neiv  York  Reports  268.  J 

Appeal  from  the  Superior  Court  of  the  city  of  Buffalo.  On 
the  trial  before  Masten,  J.,  it  appeared  by  the  evidence  of  a 
bystander,  that  one  Holly,  in  November,  1857,  at  the  request 
of  the  defendant,  loaned  and  advanced  to  him  $300,  stating  at 
the  time  that  he  owed  that  sum  to  the  plaintiff  for  money  bor- 
rowed of  him,  and  had  agreed  to  pay  it  to  him  the  then  next 
day  ;  that  the  defendant  in  consideration  thereof,  at  the  time 
of  receiving  the  money,  promised  to  pay  it  to  the  plaintiff  the 
then  next  day.  Upon  this  state  of  facts  the  defendant  moved 
for  a  nonsuit,  upon  three  several  grounds — viz. :  That  there 
was  no  proof  tending  to  show  that  Holly  was  indebted  to  the 
plaintiff  ;  that  the  agreement  by  the  defendant  with  Holly  to 
pay  the  plaintiff  was  void  for  want  of  consideration,  and  that 
there  was  no  privity  between  the  plaintiff  and  defendant.  The 
Court  overruled  the  motion,  and  the  counsel  for  the  defendant 
excepted.  The  cause  was  then  submitted  to  the  jury,  and  they 
found  a  verdict  for  the  plaintiff  for  the  amount  of  the  loan  and 
interest,  $344.66,  upon  which  judgment  was  entered  ;  from 
which  the  defendant  appealed  to  the  Superior  Court,  at  gen- 
eral term,  where  the  judgment  was  affirmed,  and  the  defendant 
appealed  to  this  Court.  The  cause  was  submitted  on  printed 
arguments. 

/.  S.   Torrance  for  the  appellant. 

E.  P.  Chapin  for  the  plaintiff. 

H.  Gray,  J.  The  first  objection  raised  on  the  trial  amounts 
to  this,  that  the  evidence  of  the  person  present,  who  heard  the 
declarations  of  Holly  giving  directions  as  to  the  payment  of  the 
money  he  was  then  advancing  to  the  defendant,  was  mere  hear- 
say, and  therefore  not  competent.  Had  the  plaintiff  sued  Holly 
for  this  sum  of  money  no  objection  to  the  competency  of  this 
evidence  would  have  been  thought  of  ;  and  if  the  defendant 
had  performed  his  promise  by  paying  the  sum  loaned  to  him  to 
the  plaintiff,  and  Holly  had  afterward  sued  him  for  its  recovery, 
and  this  evidence  had  been  offered  by  the  defendant,  it  would 
doubtless  have  been  received  without  an  objection  from  any 
source.  All  the  defendant  had  the  right  to  demand  in  this  case 
was  evidence  which,  as  between   Holly  and   the   plaintiff,  was 


778  LAWRENCE    V.    FOX.  [CHAP.  III. 

competent  to  establish  the  relation  between  them  of  debtor  and 
creditor.  For  that  purpose  the  evidence  was  clearly  compe- 
tent ;  it  covered  the  whole  ground  and  warranted  the  verdict 
of  the  jury.  But  it  is  claimed  that  notwithstanding  this  prom- 
ise was  established  by  competent  evidence,  it  was  void  for  the 
want  of  consideration.  It  is  now  more  than  a  quarter  of  a  cen- 
tury since  it  was  settled  by  the  Supreme  Court  of  this  State,  in 
an  able  and  painstaking  opinion  by  the  late  Savage,  C.J.,  in 
which  the  authorities  were  fully  examined  and  carefully  anal- 
yzed, that  a  promise  in  all  material  respects  like  the  one  under 
consideration  was  valid,  and  the  judgment  of  that  Court  was 
unanimously  affirmed  by  the  Court  for  the  Correction  of  Errors. 
Farley  v.  Cleaveland,  4  Cow.  432  ;  same  case  in  error,  9  Cow. 
639.  In  that  case  one  Moon  owed  Farley  and  sold  to  Cleave- 
land a  quantity  of  hay,  in  consideration  of  which  Cleaveland 
promised  to  pay  Moon's  debt  to  Farley  ;  and  the  decision  in 
favor  of  Farley's  right  to  recover  was  placed  upon  the  ground 
that  the  hay  received  by  Cleaveland  from  Moon  was  a  valid 
consideration  for  Cleaveland's  promise  to  pay  Farley,  and  that 
the  subsisting  liability  of  Moon  to  pay  Farley  was  no  objection 
to  the  recovery.  The  fact  that  the  money  advanced  by  Holly 
to  the  defendant  was  a  loan  to  him  for  a  day,  and  that  it  thereby 
became  the  property  of  the  defendant,  seemed  to  impress  the 
defendant's  counsel  with  the  idea  that  because  the  defendant's 
promise  was  not  a  trust  fund  placed  by  the  plaintiff  in  the  de- 
fendant's hands,  out  of  which  he  was  to  realize  money  as  from 
the  sale  of  a  chattel  or  the  collection  of  a  debt,  the  promise 
although  made  for  the  benefit  of  the  plaintiff  could  not  inure  to 
his  benefit.  The  hay  which  Moon  delivered  to  Cleaveland  was 
not  to  be  paid  to  Farley,  but  the  debt  incurred  by  Cleaveland 
for  the  purchase  of  the  hay,  like  the  debt  incurred  by  the  de- 
fendant for  money  borrowed,  was  what  was  to  be  paid.  That 
case  has  been  often  referred  to  by  the  courts  of  this  State,  and 
has  never  been  doubted  as  sound  authority  for  the  principle 
upheld  by  it.  Barker  ?'.  Bucklin,  2  Denio,  45  ;  Hudson  Canal 
Company  v.  The  Westchester  Bank,  4  Denio,  97.  It  puts  to  rest 
the  objection  that  the  defendant's  promise  was  void  for  want 
of  consideration.  The  report  of  that  case  shows  that  the  prom- 
ise was  not  only  made  to  Moon,  but. to  the  plaintiff  Farley.  In 
this  case  the  promise  was  made  to  Holly,  and  not  expressly  to 
the  plaintiff  ;  and  this  difference  between  the  two  cases  pre- 
sents the  question,  raised  by  the  defendant's  objection,  as  to 
the  want  of  pri.vity  between  the  plaintiff  and  defendant.  As 
early  as  i8c6  it  was  announced  by  the  Supreme  Court  of  this 
State,  upon  what  was  then  regarded  as  the  settled  law  of  Eng- 


SFX.  I.]  LAWRENCE   2'.    FOX.  779 

land,  "  that  where  one  person  makes  a  promise  to  another  for 
the  benefit  of  a  third  person,  that  third  person  may  maintain  an 
action  upon  it."  Schermerhorn  v.  Vanderheyden,  i  John.  R. 
140  has  often  been  reasserted  by  our  courts  and  never  departed 
from.  The  case  of  Seaman  v.  White  has  occasionally  been  re- 
ferred to  (but  not  by  the  courts),  not  onl}'  as  having  some  bear- 
ing upon  the  question  now  under  consideration,  but  as  in- 
volving in  doubt  the  soundness  of  the  proposition  stated  in 
Schermerhorn  7\  Vanderheyden.  In  that  case  one  Hill,  on 
August  17th,  1S35,  made  his  note  and  procured  it  to  be  endorsed 
by  Seaman  and  discounted  by  the  Phcenix  Bank.  Before  the 
note  matured,  and  while  it  was  owned  by  the  Phoenix  Bank,  Hill 
placed  in  the  hands  of  the  defendant,  Whitnej',  his  draft  ac- 
cepted by  a  third  party,  which  the  defendant  endorsed,  and  on 
October  7th,  1835,  got  discounted  and  placed  the  avails  in  the 
hands  of  an  agent  with  which  to  take  up  Hill's  note  ;  the  note 
became  due,  Whitney  withdrew  the  avails  of  the  draft  from  the 
hands  of  his  agent  and  appropriated  it  to  a  debt  due  him  from 
Hill,  and  Seaman  paid  the  note  endorsed  by  him  and  brought 
his  suit  against  Whitney.  Upon  this  state  of  facts  appearing, 
it  was  held  that  Seaman  could  not  recover,  first,  for  the  reason 
that  no  promise  had  been  made  by  Whitney  to  pay  ;  and,  sec- 
ond, if  a  promise  could  be  implied  from  the  facts  that  Hill's 
accepted  draft,  with  w^hich  to  raise  the  means  to  pay  the  note 
had  been  placed  by  Hill  in  the  hands  of  Whitney,  the  promise 
would  not  be  to  Seaman,  but  to  the  Phoenix  Bank,  who  then 
owned  the  note  ;  although  in  the  course  of  the  opinion  of  the 
Court  it  was  stated  that,  in  all  cases  the  principle  of  which  was 
sought  to  be  applied  to  that  case,  the  fund  had  been  appropri- 
ated by  an  express  undertaking  of  the  defendant  with  the  cred- 
itor. But  before  concluding  the  opinion  of  the  Court  in  this 
case,  the  learned  judge  who  delivered  it  conceded  that  an  un- 
dertaking to  pay  the  creditor  may  be  implied  from  an  arrange- 
ment t'o  that  effect  between  the  defendant  and  the  debtor.  This 
question  was  subsequently,  and  in  a  case  quite  recent,  again  the 
subject  of  consideration  by  the  Supreme  Court,  when  it  was 
lield  that  in  declaring  upon  a  promise,  made  to  the  debtor  by  a 
third  party  to  pay  the  creditor  of  the  debtor,  founded  upon  a 
consideration  advanced  by  the  debtor,  it  was  unnecessary  to 
aver  a  promise  to  the  creditor  ;  for  the  reason  that  upon  proof 
of  a  promise  made  to  the  debtor  to  pay  the  creditor,  a  promise 
to  the  creditor  would  be  implied.  And  in  support  of  this  propo- 
sition, in  no  respect  distinguishable  from  the  one  now  under 
consideration,  the  case  of  Schermerhorn  v.  Vanderheyden,  with 
many  intermediate  cases  in  our  courts,  were  cited,  in  which  the 


/So  LAWRENXE   V.   FOX.  [chap.  hi. 

doctrine  of  that  case  was  not  only  approved,  but  affirmed.  The 
Delaware  &  Hudson  Canal  Company  v.  The  Westchester  County 
Bank,  4  Denio,  97.  The  same  principle  is  adjudged  in  several 
cases  in  Massachusetts.  I  will  refer  to  but  few  of  them. 
Arnold  v.  Lyman,  17  Mass.  400  ;  Hall  v.  Marston,  17  Mass. 
575  ;  Brewer  v.  Dyer,  7  Cush.  337,  340.  In  Hall  v.  Marston 
the  Court  say  :  "  It  seems  to  have  been  well  settled  that  if  A. 
promises  B,  for  a  valuable  consideration  to  pay  C,  the  latter 
may  maintain  assumpsit  for  the  money  ;"  and  in  Brewer  v.  Dyer, 
the  recovery  was  upheld,  as  the  Court  said,  "  upon  the  prin- 
ciple of  law  long  recognized  and  clearly  established,  that  when 
one  person,  for  a  valuable  cpnsideration,  engages  with  another, 
by  a  simple  contract,  to  do  some  act  for  the  benefit  of  a  third, 
the  latter,  who  would  enjoy  the  benefit  of  the  act,  may  main- 
tain an  action  for  the  breach  of  such  engagement  ;  that  it  does 
not  rest  upon  the  ground  of  any  actual  or  supposed  relationship 
between  the  parties  as  some  of  the  earlier  cases  would  seem  to 
indicate,  but  upon  the  broader  and  more  satisfactory  basis  that 
the  law  operating  on  the  act  of  the  parties  creates  the  duty, 
establishes  a  privity,  and  implies  the  promise  and  obligation  on 
which  the  action  is  founded."  There  is  a  more  recent  case 
decided  by  the  same  Court,  to  which  the  defendant  has  referred 
and  claims  that  it  at  least  impairs  the  force  of  the  former  cases 
as  authority.  It  is  the  case  of  Mellen  v.  Whipple,  i  Gray,  317. 
In  that  case  one  Rollins  made  his  note  for  $500  payable  to 
Ellis  &  Mayo  or  order,  and  to  secure  its  payment  mortgaged 
to  the  payees  a  certain  lot  of  ground,  and  then  sold  and  con- 
veyed the  mortgaged  premises  to  the  defendant,  by  deed  in 
which  it  was  stated  that  the  "  granted  premises  were  subject  to 
a  mortgage  for  $500,  which  mortgage,  with  the  note  for  which 
it  was  given,  the  said  Whipple  is  to  assume  and  cancel."  The 
deed  thus  made  was  accepted  by  Whipple,  the  mortgage  was 
afterward  duly  assigned,  and  the  note  endorsed  by  Ellis  &  Mayo 
to  the  plaintiff's  intestate.  After  Whipple  received  the-  deed 
he  paid  to  the  mortgagees  and  their  assigns  the  interest  upon 
the  mortgage  and  note  for  a  time,  and  upon  refusing  to  con- 
tinue his  payments  was  sued  by  the  plaintiff  as  administratrix 
of  the  assignee  of  the  mortgage  and  note.  The  Court  held  that 
the  stipulation  in  the  deed  that  Whipple  should  pay  the  mort- 
gage and  note  was  a  matter  exclusively  between  the  two  parties 
to  the  deed  ;  that  the  sale  by  Rollins  of  the  equity  of  redemp- 
tion did  not  lessen  the  plaintiff's  security,  and  that  as  nothing 
had  been  put  into  the  defendant's  hands  for  the  purpose  of 
meeting  the  plaintiff's  claim  on  Rollins,  there  was  no  consider- 
ation to  support  an  express  promise,  much  less  an  implied  one. 


I 


SEC.  I.]  LAWRENCE    V.    FOX.  781 

that  Whipple  should  pay  Mellen  the  amount  of  the  note.  This 
is  all  that  was  decided  in  that  case,  and  the  substance  of  the 
reasons  assigned  for  tlie  decision  ;  and  whether  the  case  was 
rightly  disposed  of  or  not,  it  has  not  in  its  facts  any  analogy  to 
the  case  before  us,  nor  do  the  reasons  assigned  for  the  decision 
bear  in  any  degree  upon  the  question  we  are  now  considering. 
But  it  is  urged  that  because  tiie  defendant  was  not  in  any  sense 
a  trustee  of  the  property  of  Holly  for  the  benefit  of  the  plain- 
tiff, the  law  will  not  imply  a  promise.  I  agree  that  many  of 
the  cases  where  a  promise  was  implied  were  cases  of  trusts, 
created  for  the  benefit  of  the  promisor.  The  case  of  Felton  v. 
Dickinson,  10  Mass.  189-190,  and  others  that  might  be  cited, 
are  of  that  class,  but  concede  them  all  to  have  been  cases  of 
trusts,  and  it  proves  nothing  against  the  application  of  the  rule 
to  this  case.  The  duty  of  the  trustee  to  pay  the  ccstuis  que  trusty 
according  to  the  terms  of  the  trust,  implies  his  promise  to  the 
latter  to  do  so.  In  this  case  the  defendant,  upon  ample  consid- 
eration received  from  Holly,  promised  Holly  to  pay  his  debt  to 
the  plaintiff  ;  the  consideration  received  and  the  promise  to 
Holly  made  it  as  plainly  his  duty  to  pay  the  plaintiff  as  if  the 
money  had  been  remitted  to  iiim  for  that  purpose,  and  as  well 
implied  a  promise  to  do  so  as  if  he  had  been  made  a  trustee  of 
property  to  be  converted  into  cash  with  which  to  pay.  The 
fact  that  a  breach  of  the  duty  imposed  in  the  one  case  may  be 
visited,  and  justly,  with  more  serious  consequences  than  in  the 
other,  by  no  means  disproves  the  payment  to  be  a  duty  in  both. 
The  principle  illustrated  by  the  example  so  frequently  quoted 
(which  concisely  states  the  case  in  hand)  "  that  a  promise 
made  to  one  for  the  benefit  of  another,  he  for  whose  benefit  it 
is  made  may  bring  an  action  for  its  breach,"  has  has  been  ap- 
plied to  trust  cases,  not  because  it  was  exclusively  applicable  to 
those  cases,  but  because  it  was  a  principle  of  law,  and  as  such 
applicable  to  those  cases.  It  was  also  insisted  that  Holly  could 
have  discharged  the  defendant  from  his  promise,  though  it  was 
intended  by  both  parties  for  the  benefit  of  the  plaintiff,  and 
therefore  the  plaintiff  was  not  entitled  to  maintain  this  suit  for 
the  recovery  of  a  demand  over  which  he  had  no  control.  It  is 
enough  that  the  plaintiff  did  not  release  the  defendant  from  his 
promise,  and  whether  he  could  or  not  is  a  question  not  now 
necessarily  involved  ;  but  if  it  was,  I  think  it  would  be  found 
difficult  to  maintain  the  right  of  Holly  to  discharge  a  judgment 
recovered  by  t!ie  plaintiff  upon  confession  or  otherwise,  for  the 
breach  of  the  defendant's  promise  ;  and  if  he  could  not,  how 
could  he  discharge  the  suit  before  judgment,  or  the  promise 
before  suit,  made  as  it  was  for  the   plaintiff's   benefit  and   in 


782  LAWRENCE   V.    FOX.  [CHAP.  III. 

accordance  with  legal  presumption  accepted  by  him  (Berley  i>. 
Taylor,  5  Hill,  577-584,  ef  se^.),  until  his  dissent  was  shown  ? 
The  cases  cited,  and  especially  tliat  of  Farley  v.  Cleaveland, 
establish  the  validity  of  a  parol  promise  ;  it  stands  then  upon 
the  footing  of  a  written  one.  Suppose  the  defendant  had  given 
his  note  in  which  for  value  received  of  Holly  he  had  promised 
to  paj'^  the  plaintiff,  and  the  plaintiff  had  accepted  the  promise 
retaining  Holly's  liability.  Very  clearly  Holly  could  not  have 
discharged  that  promise,  be  the  right  to  release  the  defendant 
as  it  may.  No  one  can  doubt  that  he  owes  the  sum  of  money 
demanded  of  him,  or  that  in  accordance  with  his  promise  it  was 
his  duty  to  have  paid  it  to  the  plaintiff  ;  nor  can  it  be  doubted 
that  whatever  may  be  the  diversity  of  opinion  elsewhere,  the 
adjudications  in  this  State,  from  a  very  early  period,  approved 
by  experience,  have  established  -the  defendant's  liability  ;  if, 
therefore,  it  could  be  shown  that  a  more  strict  and  technically 
accurate  application  of  the  rules  applied  would  lead  to  a  differ- 
ent result  (which  I  by  no  means  concede),  the  effort  should  not 
be  made  in  the  face  of  manifest  justice. 

The  judgment  should  be  affirmed. 

Johnson,  C.J.,  Denio,  Seldon,  Allen  and  Strong,  JJ.,  con- 
curred. Johnson,  C.J.,  and  Denio,  J.,  were  of  opinion  that 
the  promise  was  to  be  regarded  as  made  to  the  plaintiff  through 
the  medium  of  his  agent,  whose  action  he  could  ratify  when  it 
came  to  his  knowledge,  though  taken  without  his  being  privy 
thereto. 

CoMSTOCK,  J.  (Dissenting.)  The  plaintiff  had  nothing  to  do 
with  the  promise  on  which  he  brought  this  action.  It  was  not 
made  to  him,  nor  did  the  consideration  proceed  from  him.  If 
he  can  maintain  the  suit,  it  is  because  an  anomaly  has  found  its 
way  into  the  law  on  this  subject.  In  general  there  must  be 
privity  of  contract.  The  party  v^ho  sues  upon  a  promise  must 
be  the  promisee,  or  he  must  have  some  legal  interest  in  the 
undertaking.  In  this  case  it  is  plain  that  Holly,  who  loaned 
the  money  to  the  defendant,  and  to  whom  the  promise  in  ques- 
tion was  made,  could  at  any  time  have  claimed  that  it  should 
be  performed  to  himself  personally.  He  had  lent  the  money 
to  the  defendant,  and  at  the  same  time  directed  the  latter  to 
pay  the  sum  to  the  plaintiff.  This  direction  he  could  counter- 
mand, and  if  he  had  done  so,  manifestly  the  defendant's  prom- 
ise to  pay  according  to  the  direction  would  have  ceased  to 
exist.  The  plaintiff  would  receive  a  benefit  by  a  complete 
execution  of.  the  arrangement,  but  the  arrangement  itself  was 
between  other  parties,  and  was  under  their  exclusive  control. 
If  the  defendant  had  paid  the  money  to  Holly,  his  debt  would 


SEC.  I.]  LAWRENCE   V.    FOX.  7S3 

have  been  discharged  thereby.  So  Holly  might  have  released 
the  demand  or  assigned  it  to  another  person,  or  the  parties 
might  have  annulled  the  promise  now  in  question,  and  desig- 
nated some  other  creditor  of  Holly  as  the  party  to  whom  tlie 
money  should  be  paid.  It  has  never  been  claimed, that  in  a  case 
thus  situated,  the  right  of  a  third  person  to  sue  upon  tlie  i)rom- 
ise  rested  on  any  sound  principle  of  law.  We  are  to  inquire 
whether  the  rule  has  been  so  established  by  positive  authority. 

The  cases  which  have  sometimes  been  supposed  to  have  a 
bearing  on  this  question  are  quite  numerous.  In  some  of  them 
the  dicta  of  judges,  delivered  upon  very  slight  consideration, 
have  been  referred  to  as  the  decisions  of  the  courts.  Thus  in 
Schermerhorn  v.  Vanderheyden,  i  John.  140,  the  Court  is  re- 
ported as  saying  :  "  We  are  of  opinion  that  where  one  person 
makes  a  promise  to  another,  for  the  benefit  of  a  third  person, 
that  third  person  may  maintain  an  action  on  such  promise." 
This  remark  was  made  on  the  authority  of  Button  v.  Poole, 
Vent.  318,  332,  decided  in  England  nearly  two  hundred  years 
ago.  It  was,  however,  but  a  mere  remark,  as  the  case  was 
determined  against  the  plaintiff  on  another  ground.  Yet  this 
decision  has  often  been  referred  to  as  authority  for  similar 
observations  in  later  cases. 

In  another  class  of  cases,  which  have  been  sometimes  sup- 
posed to  favor  the  doctrine,  the  promise  was  made  to  the  person 
who  brought  the  suit  while  the  consideration  proceeded  from 
another,  the  question  considered  being  whether  the  promise 
was  void  by  the  Statute  of  Frauds.  Thus  in  Gold  v.  Phillips, 
10  Johns.  412  one  Wood  was  indebted  to  the  plaintiffs  for  ser- 
vices as  attorneys  and  counsel,  and  he  conveyed  a  farm  to  the 
defendants  who,  as  part  of  the  consideration,  were  to  pay  that 
debt.  Accordingly  the  defendants  wrote  to  the  plaintiffs,  in- 
forming them  that  an  arrangement  had  been  made  by  which 
they  were  to  pay  the  demand.  The  defence  was  that  the  prom- 
ise was  void  within  the  statute,  because,  although  in  writing,  it 
did  not  express  the  consideration.  But  the  action  was  sus- 
tained on  the  ground  that  the  undertaking  was  original  and  not 
collateral.  So  in  the  case  of  Farley  v.  Cleaveland,  4  Cow.  432  ; 
9  Cow.  639,  the  facts  proved  or  offered  to  be  proved  were  that 
the  plaintiff  held  a  note  against  one  Moon  ;  that  Moon  sold  hay 
to  the  defendant,  who  in  consideration  of  that  sale  promised 
the  plaintiff  by  parol  to  pay  the  note.  The  only  question  was 
whether  the  Statute  of  Frauds  applied  to  the  case.  It  was  held 
by  the  Supreme  Court,  and  afterward  by  the  Court  of  Errors, 
that  it  did  not.  Such  is  also  precisely  the  doctrine  of  Ell- 
wood  V.  Monk,  5   Wend.  235,  where  it  was  held   that  a  plea  of 


784  LAWRENCE   V.   FOX.  [CHAP.  III. 

the  Statute  of  Frauds  to  a  count  upon  a  promise  of  the  defend- 
ant to  the  plaintiff,  to  pay  the  latter  a  debt  owing  to  him  by 
another  person,  the  promise  being  founded  on  a  sale  of  prop- 
erty to  the  defendant  by  the  other  person  was  bad. 

The  cases  mentioned,  and  others  of  a  like  character  were  re- 
ferred to  by  Jewett,  J.,  in  Barker  v.  Bucklin,  2  Denio,  45.  In 
that  case  the  learned  justice  considered  at  some  length  the  ques- 
tion now  before  us.  The  authorities  referred  to  were  mainly 
those  which  I  have  cited  and  others  upon  the  Statute  of  Frauds. 
The  case  decided  nothing  on  the  present  subject,  because  it  was 
determined  against  the  plaintiff  on  a  ground  not  involved  in 
this  discussion.  The  doctrine  was  certainly  advanced  which 
the  plaintiff  now  contends  for,  but  among  all  the  decisions 
which  were  cited  I  do  not  think  there  is  one  standing  directly 
upon  it.  The  case  of  Arnold  v.  Lyman,  17  Mass.  400,  might 
perhaps  be  regarded  as  an  exception  to  this  remark  if  a  differ- 
ent interpretation  had  not  been  given  to  that  decision  in  the 
Supreme  Court  of  the  same  State  where  it  was  pronounced. 
In  the  recent  case  of  Mellen,  Administratrix,  v.  Whipple,  i  Gray, 
317,  that  decision  is  understood  as  belonging  to  a  class  where 
the  defendant  has  in  his  hands  a  trust  fund,  which  was  the 
foundation  of  the  duty  or  promise  in  which  the  suit  is  brought. 

The  cases  in  which  some  trust  was  involved  are  also  fre- 
quently referred  to  as  authority  for  the  doctrine  now  in  ques- 
tion, but  they  do  not  sustain  it.  If  A.  delivers  money  or  prop- 
erty to  B.,  which  the  latter  accepts  upon  a  trust  for  the  benefit 
of  C,  the  latter  can  enforce  the  trust  by  an  appropriate  action 
for  that  purpose.  Berly  v.  Taylor,  5  Hill,  577.  If  the  trust 
be  of  money,  I  think  the  beneficiary  may  assent  to  it  and  bring 
the  action  for  money  had  and  received  to  his  use.  If  it  be  of 
something  else  than  money,  the  trustee  must  account  for  it 
according  to  the  terms  of  the  trust  and  upon  principles  of 
equity.  There  is  some  authority  even  for  saying  that  an  ex- 
press promise  founded  on  the  possession  of  a  trust  fund  may 
be  enforced  by  an  action  at  law  in  the  name  of  the  beneficiary, 
although  it  was  made  to  the  creator  of  the  trust.  Thus  in 
Comyn's  Digest  (Action  on  the  Case  upon  Assumpsit,  B.  15), 
it  is  laid  down  that  if  a  man  promise  a  pig  of  lead  to  A.,  and 
his  executor  give  lead  to  make  a  pig  to  B.,  who  assumes  to  de- 
liver it  to  A.,  an  assiimpsii  lies  by  A.  against  him.  The  case  of 
The  Delaware  &  Hudson  Canal  Company  v.  The  Westchester 
County  Bank,  4  Denio,  97,  involved  a  trust  because  the  defend- 
ants had  received  from  a  third  party  a  bill  of  exchange  under 
an  agreement  that  they  would  endeavor  to  collect  it,  and  would 
pay  over  the  proceeds  when  collected  to  the  plaintiffs.     A  fund 


SEC.  I.]  LAWRENCE   V.    FOX.  7S5 

received  under  such  an  agreement  does  not  belong  to  the  per- 
son who  receives  it.  He  must  account  for  it  specifically  ;  and 
perhaps  there  is  no  gross  violation  of  principle  in  permitting 
the  equitable  owner  of  it  to  sue  upon  an  express  promise  to 
.pay  it  over.  Having  a  specific  interest  in  the  thing,  the  under- 
taking to  account  for  it  may  be  regarded  as  in  some  sense  made 
with  hirn  through  the  author  of  the  trust.  But  further  than 
this  we  cannot  go  without  violating  plain  rules  of  law.  In  the 
case  before  us  there  was  nothing  in  the  nature  of  a  trust  or 
agency.  The  defendant  borrowed  the  money  of  Holly  and  re- 
ceived it  as  his  own.  The  plaintiff  had  no  right  in  the  fund, 
legal  or  equitable.  The  promise  to  repay  the  money  created 
an  obligation  in  favor  of  the  lender  to  whom  it  was  made  and 
not  in  favor  of  any  one  else. 

I  have  referred  to  the  dictum  in  Schermerhorn  v.  Vander- 
heyden,  i  Johns.  140,  as  favoring  the  doctrine  contended  for. 
It  was  the  earliest  in  this  State,  and  was  founded,  as  already 
observed,  on  the  old  English  case  of  Button  v.  Poole,  in  Ven- 
tris.  That  case  has  always  been  referred  to  as  the  ultimate 
authority  whenever  the  rule  in  question  has  been  mentioned, 
and  it  deserves,  therefore,  some  further  notice.  The  father  of 
the  plaintiff's  wife  being  seized  of  certain  lands,  which  after- 
ward on  his  death  descended  to  the  defendant,  and  being  about 
to  cut  ^1000  worth  of  timber  to  raise  a  portion  for  his  daugh- 
ter, the  defendant  promised  the  father,  in  consideration  of  his 
forbearing  to  cut  the  timber,  that  he  would  pay  the  said  daugh- 
ter the  ^p^iooo.  After  verdict  for  the  plaintiff,  upon  the  issue 
of  non  assumpsit,  it  was  urged  in  arrest  of  judgment,  that  the 
father  ought  to  have  brought  the  action,  and  not  the  husband 
and  wife.  It  was  held,  after  much  discussion,  that  the  action 
would  lie.  The  Court  said  :  "  It  might  be  another  case  if  the 
money  had  been  to  have  been  paid  to  a  stranger,  but  there  is 
such  a  nearness  of  relation  between  the  father  and  the  child, 
and  it  is  a  kind  of  debt  to  the  child  to  be  provided  for,  that  the 
plaintiff  is  plainly  concerned."  We  need  not  criticise  the 
reason  given  for  this  decision.  It  is  enough  for  the  present 
purpose  that  the  case  is  no  authority  for  the  general  doctrine, 
to  sustain  which  it  has  been  so  frequently  cited.  It  belongs  to 
a  class  of  cases  somewhat  peculiar  and  anomalous,  in  which 
promises  have  been  made  to  a  parent  or  person  standing  in  a 
near  relationship  to  the  person  for  whose  benefit  it  was  made, 
and  in  which,  on  account  of  that  relationship,  the  beneficiary 
has  been  allowed  to  maintain  the  action.  Regarded  as  stand- 
ing on  any  other  ground,  they  have  long  since  ceased  to  be  the 
law  in  England.     Thus  in  Crow  v.  Rogers,  i  Strange,  592,  one 


786  LAWRENCE   V.    FOX.  [CHAP.  ill. 

Hardy  was  indebted  to  the  plaintiff  in  the  sum  of  /^jo,  and 
upon  a  discourse  between  Hardy  and  the  defendant,  it  was 
agreed  that  the  defendant  should  pay  that  debt  in  consideration 
of  a  house  to  be  conveyed  by  Hardy  to  him.  The  plaintiff 
brought  the  action  on  that  promise,  and  Button  v.  Poole  was 
cited  in  support  of  it.  But  it  was  held  that  the  action  would 
not  lie,  because  the  plaintiff  was  a  stranger  to  the  transaction. 
Again,  in  Price  v.  Easton,  4  Barn.  &  Adolph.  433,  one  William 
Price  was  indebted  to  the  plaintiff  in  ^13.  The  r'eclaration 
averred  a  promise  of  the  defendant  to  pay  the  debt  in  consid- 
eration that  William  Price  would  work  for  him  and  leave  the 
wages  in  his  hands,  and  that  Price  did  work  accordingly,  and 
earned  a  large  sum  of  money,  which  he  left  in  the  defendant's 
hands.  After  verdict  for  the  plaintiff  a  motion  was  made  in 
arrest  of  judgment,  on  the  ground  that  the  plaintiff  was  a  stranger 
to  the  consideration.  Button  v.  Poole  and  other  cases  of  that 
class  were  cited  in  opposition  to  the  motion,  but  the  judgment 
was  arrested.  Lord  Benman  said  :  "  I  think  the  declaration 
cannot  be  supported,  as  it  does  not  show  any  consideration  for 
the  promise  moving  from  the  plaintiff  to  the  defendant."  l.it- 
tledale,  J.,  said  :  "  No  privity  is  shown  between  the  plaintiff 
and  the  defendant.  The  case  is  precisely  like  Crow  v.  Rogers, 
and  must  be  governed  by  it."  Taunton,  J.,  said  :  "  It  is  con- 
sistent with  all  the  matter  alleged  in  the  declaration  that  the 
plaintiff  may  have  been  entirely  ignorant  of  the  arrangement 
between  William  Price  and  the  defendant."  Patterson,  J., 
observed  :  "  It  is  clear  that  the  allegations  do  not  show  a  right 
of  action  in  the  plaintiff.  There  is  no  promise  to  the  plaintiff 
alleged."  The  same  doctrine  is  recognized  in  Lilly  v.  Hays, 
5  Ad.  &  Ellis,  548,  and  such  is  now  the  settled  rule  in  England, 
although  at  an  early  day  there  was  some  obscurity  arising  out 
of  the  case  of  Button  v.  Poole  and  others  of  that  peculiar  class. 
The  question  was  also  involved  in  some  confusion  by  the 
earlier  cases  in  Massachusetts.  Indeed,  the  Supreme  Court  of 
tliat  State  seems  at  one  time  to  have  made  a  nearer  approach  to 
the  doctrine  on  which  this  action  must  rest  than  the  courts  of 
this  State  have  ever  done.  10  Mass.  287  ;  17  Mass.  400.  But 
in  the  recent  case  of  Mellen,  Administratrix,  v.  Whipple,  i  Gray, 
317,  the  subject  was  carefully  reviewed  and  the  doctrine  utterly 
overthrown.  One  RoUin  was  indebted  to  the  plaintiff's  testa- 
tor, and  had  secured  the  debt  by  a  mortgage  on  his  land.  He 
then  conveyed  the  equity  of  redemption  to  the  defendant  by  a 
deed  which  contained  a  clause  declaring  that  the  defendant  was 
to  assume  and  pay  the  mortgage.  It  was  conceded  that  the 
acceptance  of  the  deed  with  such  a  clause  in  it  was  equivalent 


SEC.  I.]  TWEDDLE   V.   ATKINSON.  787 

to  an  express  promise  to  pay  the  mortgage  debt,  and  the  ques- 
tion was  whether  the  mortgagee  or  his  representative  could  sue 
on  that  undertaking.  It  was  held  that  the  suit  could  not  be 
maintained,  and  in  the  course  of  a  very  careful  and  discrimi- 
nating opinion  by  Metcalf,  J.,  it  was  shown  that  the  cases  which 
had  been  supposed  to  favor  the  action  belonged  to  exceptional 
classes,  none  of  which  embraced  the  pure  and  simple  case  of  an 
attempt  by  one  person  to  enforce  a  promise  made  to  another 
from  whom  the  consideration  wholly  proceeded.  I  am  of  that 
opinion. 

The  judgment  of  the  Court  below  should  therefore  be  re- 
versed and  a  new  trial  granted. 

Grover,  J.,  also  dissented. 

Judgment  affirmed. 


TWEDDLE  V.  ATKINSON,  Executor  of  Guv,  Deceased. 

In  the  Queen's  Bench,  June  7,  1861. 

\^Reported  z'n  i  Best  &^  Stiiiih  393.] 

The  declaration  stated  that  the  plaintiff  was  the  son  of  John 
Tweddle,  deceased,  and  before  the  making  of  the  agreement 
hereafter  mentioned,  married  the  daughter  of  William  Guy,  de- 
ceased ;  and  before  the  said  marriage  of  the  plaintiff  the  said 
William  Guy,  in  consideration  of  the  then  intended  marriage, 
promised  the  plaintiff  to  give  to  his  said  daughter  a  marriage 
portion,  but  the  said  promise  was  verbal,  and  at  the  time  of 
the  making  of  the  said  agreement  had  not  been  performed  ; 
and  before  the  said  marriage  the  said  John  Tweddle,  in  con- 
sideration of  the  said  intended  marriage,  also  verbally  prom- 
ised to  give  the  plaintiff  a  marriage  portion,  which  promise  at 
the  time  of  the  making  of  the  said  agreement  had  not  been 
performed.  It  then  alleged  that  after  the  marriage  and  in  the 
lifetime  of  the  said  William  Guy,  and  of  the  said  John  Tweddle, 
they,  the  said  William  Guy  and  John  Tweddle,  entering  into 
the  agreement  hereafter  mentioned  as  a  mode  of  giving  effect 
to  their  said  verbal  promises  ;  and  the  said  William  Guy  also 
entering  into  the  said  agreement  in  order  to  provide  for  his  said 
daughter  a  marriage  portion,  and  to  procure  a  further  provision 
to  be  made  by  the  said  John  Tweddle,  by  means  of  the  said 
agreement,  for  his  said  daughter,  and  acting  for  the  benefit  of 
his  said  daughter  ;  and  the  said  John  Tweddle  also  entering 
into  the  said  agreement  in  order  to  provide  for  the  plaintiff  a 


788  TWEDDLE   v.   ATKI>;SON.  [cHAP.  III. 

marriage  portion,  and  to  procure  a  further  provision  to  be  made 
by  the  said  William  Guy,  by  means  of  the  said  agreement,  for 
the  plaintiff,  and  acting  for  the  benefit  of  the  plaintiff  ;  they  the 
said  William  Guy  and  John  Tweddle  made  and  entered  into  an 
agreement  in  writing  in  the  words  following — that  is  to  say  : 

"  High  Coniscliffe,  July  ii,  1855. 

"  Memorandum  of  an  agreement  made  this  day  between 
William  Guy,  of,  etc.,  of  the  one  part,  and  John  Tweddle,  of, 
etc.,  of  the  other  part.  Whereas  it  is  mutually  agreed  that  the 
said  William  Guy  shall  and  will  pay  the  sum  of  ;^2oo  to 
William  Tweddle,  his  son-in-law  ;  and  the  said  John  Tweddle, 
father  to  the  aforesaid  William  Tweddle,  shall  and  will  pay  the 
sum  of  ^100  to  the  said  William  Tweddle,  each  and  severally 
the  said  sums  on  or  before  August  21st,  1855.  And  it  is  hereby 
further  agreed  by  the  aforesaid  William  Guy  and  the  said  John 
Tweddle  that  the  said  William  TweddJe  has  full  power  to  sue 
the  said  parties  in  any  court  of  law  or  equity  for  the  aforesaid 
sums  hereby  promised  and  specified. 

*'  And  the  plaintiff  says  that  afterward  and  before  this  suit, 
he  and  his  said  wife,  who  is  still  living,  ratified  and  assented  to 
the  said  agreement,  and  that  he  is  the  William  Tweddle  therein 
mentioned.  And  the  plaintiff  says  that  the  said  August  21st, 
1855,  -A.D.,  elapsed,  and  all  things  have  been  done  and  happened 
necessary  to  entitle  the  plaintiff  to  have  the  said  sum  of  ^200 
paid  by  the  said  William  Guy  or  his  executor,  yet  neither  the 
said  William  Guy  nor  his  executor  has  paid  the  same,  and  the 
same  is  in  arrear  and  unpaid,  contrary  to  the  said  agr<e^ment." 

Demurrer  and  joinder  therein. 

Edward  Jatnes  for  the  defendant. 

Mellish  for  the  plaintiff. 

Edward  James  was  not  called  upon  to  reply. 

WiGHTMAN,  J.  Some  of  the  old  decisions  appear  to  support 
the  proposition  that  a  stranger  to  the  consideration  of  a  con- 
tract may  maintain  an  action  upon  it,  if  he  stands  in  such  a 
near  relationship  to  the  party  from  whom  the  consideration 
proceeds,  that  he  may  be  considered  a  party  to  the  considera- 
tion. The  strongest  of  those  cases  is  that  cited  in  Bourne  v. 
Mason,  i  Ventr.  6,  in  which  it  was  held  that  the  daughter  of  a 
physician  might  msantddn  assumpsit  upon  a  promise  to  her  father 
to  give  her  a  sum  of  money  if  he  performed  a  certain  cure. 
But  there  is  no  modern  case  in  which  the  proposition  has  been 
supported.  On  the  contrary,  it  is  now  established  that  no 
stranger  to  the  consideration  can  take  advantage  of  a  cont:act, 
although  made  for  his  benefit. 


SEC.  I.]  TWEDDLE   V.    ATKINSON.  7S9 

Crompton,  J.  It  is  admitted  that  tlie  plaintiff  cannot  suc- 
ceed unless  this  case  is  an  exception  to  the  modern  and  well- 
established  doctrine  of  the  action  of  assumpsit.  At  the  time 
when  the  cases  which  have  been  cited  were  decided  the  action 
of  assumpsit  was  treated  as  an  action  of  trespass  upon  the  case, 
and  therefore  in  the  nature  of  a  tort  ;  and  the  law  was  not 
settled,  as  it  now  is,  that  natural  love  and  affection  is  not  a 
sufficient  consideration  for  a  promise  upon  which  an  action  may 
be  maintained  ;  nor  was  it  settled  that  the  promisee  cannot  bring 
an  action  unless  the  consideration  for  the  promise  moved  from 
him.  The  modern  cases  have,  in  effect,  overruled  the  old  de- 
cisions ;  they  show  that  the  consideration  must  move  from  the 
party  entitled  to  sue  upon  the  contract.  It  would  be  a  mon- 
strous proposition  to  say  that  a  person  was  a  party  to  the  con- 
tract for  the  purpose  of  suing  upon  it  for  his  own  advantage, 
and  not  a  party  to  it  for  the  purpose  of  being  sued.  It  is  said 
that  the  father  in  the  present  case  was  agent  for  the  son  in 
making  the  contract,  but  that  argument  ought  also  to  make  the 
son  liable  upon  it.  I  am  prepared  to  overrule  the  old  de- 
cisions, and  to  hold  that,  by  reason  of  the  principles  which  now 
govern  the  action  of  assu7)ipsit^  the  present  action  is  not  main- 
tainable. 

Blackburn,  J.  The  earlier  part  of  the  declaration  shows  a 
contract  which  might  be  sued  on,  except  for  the  enactment  in 
§  4  of  the  Statute  of  Frauds,  29  Car.  2,  ch.  3.  The  declaration 
then  sets  out  a  new  contract,  and  the  only  point  is  whether, 
that  contract  being  for  the  benefit  of  the  children,  they  can  sue 
upon  it.  Mellish  admits  that  in  general  no  action  can  be  main- 
tained upon  a  promise,  unless  the  consideration  moves  from  the 
party  to  whom  it  is  made.  But  he  says  that  there  is  an  excep- 
tion— namely,  that  when  the  consideration  moves  from  a  father, 
and  the  contract  is  for  the  benefit  of  his  son,  the  natural  love 
and  affection  between  the  father  and  son  gives  the  son  the  riglit 
to  sue  as  if  the  consideration  had  proceeded  from  himself.  And 
Button  and  Wife  v.  Poole,  2  Lev.  210  ;  i  Ventr.  318  was  cited 
for  this.  We  cannot  overrule  a  decision  of  the  Exchequer 
Chamber,  but  there  is  a  distinct  ground  on  which  that  case 
cannot  be  supported.  The  cases  upon  Stat.  27  El,  ch.  4,  which 
have  decided  that,  by  §  2,  voluntary  gifts  by  settlement  after 
marriage  are  void  against  subsequent  purchasers  for  value,  and 
are  not  saved  by  §  4,  show  that  natural  love  and  affection  are 
not  a  sufficient  consideration  whereon  an  action  of  assumpsit  may 
be  founded. 

Judgment  for  the  defendant. 


rroo  CAMPBELL  V.    LACOCK.  [CHAP.  III. 

CAMPBELL  V.   LACOCK. 

In  the  Supreme  Court  of  Pennsylvania,   i86i. 
[Reported  m  40  Peiinsyhiaiiia  State  Reports  448.  J 

Error  to  the  District  Court  of  Allegheny  County. 

This  was  an  action  on  the  case  brought  in  the  Court  below 
by  Nelson  Campbell  against  H.  Lacock,  on  a  contract  of 
guarantee. 

The  case  was  this.  R.  P.  Getty  and  Samuel  Geissinger  were 
partners,  carrying  on  the  business  of  tavernkeeping  in  the 
Station  Hotel,  in  the  city  of  Allegheny,  and  on  December  17th, 
1856,  dissolved  partnership  by  Getty  selling  out  his  interest  to 
Geissinger,  on  the  latter  agreeing  to  pay  him  therefor  the  sum 
of  $700,  on  or  before  January  ist,  1857,  and  make  him  a  good 
and  sufficient  deed  of  a  lot  of  ground  in  the  borough  of  Bir- 
mingham, and  "  to  pay  all  debts,  dues,  and  demands  against 
the  late  firm  of  Geissinger  &  Getty,  and  give  good  and  suffi- 
cient security  for  the  faithful  performance  of  the  same." 

At  the  time  of  the  signing  and  sealing  of  the  foregoing  agree- 
ment, and  as  security  for  the  performance  thereof,  H.  Lacock, 
the  defendant,  executed  the  following  agreement  in  writing, 
endorsed  thereon — viz. : 

"  I  guarantee  and  hold  myself  responsible  for  the  faithful 
performance,  on  the  part  of  Samuel  Geissinger,  of  the  contract 
executed  within." 

The  plaintiff's  action  was  brought  on  this  agreement  to  re- 
cover the  amount  owed  him  by  Getty  &  Geissinger,  as  makers 
of  a  promissory  note  for  the  sum  of  $500,  dated  October  8th, 
1856,  payable  May  ist,  1857,  to  the  order  of  Robert  McCuen, 
and  by  him  endorsed  to  the  plaintiff  before  maturity.  Suit  had 
been  brought  thereon  by  the  plaintiff  against  Getty  &  Geis- 
singer to  November  Term,  1857,  of  this  Court,  and  on  Octo- 
ber 15th,  1857,  judgment  rendered  against  them  in  favor  of  the 
plaintiff,  for  the  sum  of  $515.18,  upon  which  execution  was 
issued  and  returned  "no  goods."  This  action  was  then 
brought  against  the  defendant,  upon  his  refusal  to  pay  the 
amount  of  Getty  &  Geissinger's  indebtedness. 

The  declaration  contained  one  special  count  setting  forth  the 
case  as  above  stated,  to  which  the  defendant  filed  an  affidavit 
of  defence,  setting  forth  that  he  owed  said  Nelson  Campbell 
nothing  except  a  small  balance  of  $19  for  ale  ;  had  no  dealings 
of  the  kind  mentioned   with  him  ;  that  there  is  no  privity  of 


SEC.  I.]  CAMPBELL   V.    LACOCK.  79 1 

contract  between  them  ;  that  his  only  liability,  if  any  exist  by 
reason  of  his  signing  the  paper  referred  to,  is  with  said  R.  P. 
Getty  ;  that  it  was  never  understood  or  considered  that  defend- 
ant should  be  liable  to  strangers  and  persons  not  privy  to  said 
contract  ;  and  that  by  reason  of  subsequent  arrangements  and 
contracts,  he  has  a  good  defence  against  said  Getty  for  all  de- 
mands by  reason  of  said  contract  and  guarantee. 

This  was  followed  by  a  rule  for  judgment  for  want  of  a  suffi- 
cient affidavit  of  defence,  which  on  hearing  was  discharged  ; 
whereupon  the  defendant  pleaded  «/7  deh'f,  with  leave  to  give 
in  evidence  the  matter  contained  in  his  affidavit  of  defence. 

On  January  14th,  1861,  the  jury  were  sworn,  and  rendered 
their  verdict  in  favor  of  the  plaintiff  for  ^624.18,  subject  to  the 
opinion  of  the  Court  upon  the  questions  of  law  reserved. 

On  argument  the  Court  below  (Williams,  J.)  delivered  the 
following  opinion. 

After  stating  the  case  briefly,  the  learned  judge  continued  : 

"  The  defendant  is  under  no  moral  obligation  to  pay  the 
debts  of  Getty  &  Geissinger,  and  if  he  is  under  a  legal  obliga- 
tion, it  arises  out  of  his  agreement  as  the  surety  of  Geissinger. 
But  the  plaintiff  was  not  a  party  to  this  agreement.  The  con- 
sideration did  not  move  from  him,  and  the  promise  was  not 
made  to  him,  or  for  his  benefit.  There  is  no  privity  of  contract 
between  the  parties  here.  How  then  can  the  plaintiff  maintain 
this  action  ?  Where  the  promise  is  to  one  for  the  benefit  of 
another,  the  decisions  do  not  seem  to  be  altogether  uniform  or 
reconcilable  as  to  the  party  by  whom  the  action  should  be 
brought. 

"  In  some  cases  it  has  been  held  that  he  for  whose  benefit  a  J 
promise  is  made  may  maintain  an  action  on  it,  although  no  con- 
sideration pass  from  him  to  the  defendant,  nor  any  promise  j 
directly  to  him  from  the  defendant.  Hind  v.  Holdship,  2  Watts, 
104.  Upon  the  principle  that  one  for  whose  use  and  benefit  a 
promise  is  made,  if  upon  sufficient  consideration,  may  maintain 
an  action  on  it,  it  was  held  in  Beers  z>.  Robinson,  9  Barr,  229, 
that  where  A.  promises  B.  to  pay  B.'s  debts,  so  far  as  the  con- 
sideration received  would  go,  the  creditor  of  B.  may  maintain 
an  action  on  the  promise.  And  to  the  same  effect  are  Vincent  z'. 
Watson,  6  Harris,  96  ;  Bell  z;.  Fagely,  7  Harris,  273  ;  and  A^'er's 
Appeal,  4  Casey,  179.  A  distinction  is  taken  in  Blymire  v. 
Boistle,  6  Watts,  182,  and  the  rule  is  there  laid  down,  that  if 
one  receive  money  from  another  for  the  use  of  a  third  person, 
or  having  money  belonging  to  another,  agree  with  that  other  to 
pay  it  to  a  third,  action  lies  by  the  person  beneficially  inter- 
ested.    But  where  the  contract  is  for  the  benefit  of  the  contract- 


^CJ2  CAMPBELL  V.    LACOCK.  [cHAP.  ill. 

ing  party,  and  the  third  person  is  a  stranger  to  the  contract  and 
consideration,  the  action  must  be  by  the  promisee.  This  dis- 
tinction is  recognized  and  approved  by  Kennedy,  J.,  in  De 
Bolle  V.  Pennsylvania  Insurance  Company,  4  Wh.  74,  and  Hub- 
bert  V.  Borden,  6  Wh.  94. 

"  The  case  in  Blymire  v.  Boistle  was  this.  Boistle  had  a 
judgment  against  Gladstone,  which  Blymire  agreed  with  Glad- 
stone to  pay,  in  consideration  that  the  latter  would  convey  to 
him  a  lot  of  ground.  Gladstone  conveyed  the  lot,  but  Blymire 
did  not  pay  the  judgment  according  to  hio  agreement,  and 
Boistle  brought  suit  against  him.  And  the  question  was, 
whether  the  action  was  rightly  brought.  It  was  held  that  the 
action  should  have  been  brought  in  the  name  of  Gladstone,  the 
contracting  party  for  whose  benefit  the  agreement  was  made, 
and  not  in  the  name  of  Boistle,  who  was  a  stranger  to  the  con- 
tract and  consideration. 

"  It  is  suggested  by  Rogers,  J.,  in  Esling  v.  Zantzinger, 
I  Harris,  50,  that  the  decision  would  have  been  different  if 
Boistle  had  participated  in  the  contract — that  is,  if  the  three 
had  met  together,  and  Blymire  had  expressly  promised  Boistle 
to  pay  the  judgment.  And  accordingly  it  was  held  in  Esling  v. 
Zantzinger,  that  where  a  landlord  gave  a  creditor  an  order  oa 
his  tenant  to  pay  the  creditor  the  rent  as  it  became  due,  which 
was  accepted  by  the  tenant,  that  a  liability  by  the  tenant  in 
favor  of  the  creditor  was  thereby  created,  which  could  be  en- 
forced by  an  action  in  the  name  of  the  creditor,  and  that  the 
tenant's  liability  to  the  action  was  grounded  not  merely  on  the 
extinguishment  of  his  liability  to  the  landlord,  but  mainly  on 
the  express  promise,  for  which  there  was  a  sufficient  considera- 
tion. In  reference  to  Blymire  v.  Boistle,  and  other  cases  relied 
on  by  the  defendant  to  defeat  the  action  in  that  case,  the  learned 
judge  says  :  '  In  all  of  these  the  privity  of  contract,  which  is 
indispensable  to  the  maintenance  of  the  suit  in  the  name  of  the 
original  creditor,  is  wanting.'  The  decision  in  Finney  v. 
Finney,  4  Harris,  380,  is  put  expressly  on  the  ground  of  the 
want  of  privity  of  contract  between  the  parties,  and  for  this 
reason  it  was  there  held  that  the  plaintiff  was  not  entitled  to 
recover,  though  the  Court,  from  the  manifest  unfairness  of  the 
defendant's  conduct  in  withholding  the  fund  from  all  parties, 
was  anxious  to  sustain  the  action. 

"  The  case  of  The  Commercial  Bank  v.  Wood,  7  W.  &  S.  89, 
falls  clearly  within  the  distinction  taken  in  Blymire  v.  Boistle, 
though,  in  delivering  the  opinion  of  the  Court,  Kennedy,  J., 
seems  to  lay  stress  on  the  fact  that  the  plaintiffs  subsequently 
assented  to  the  arrangement   made   by   their  debtor  with   the 


SEC.  I.]  CAMPBELL   V.    LACOCK.  793 

bank  for  the  payment  of  tlie  note  held  by  them.  The  arrang^e- 
ment  was  this.  The  bank  received  from  Piatt,  the  agent  of 
McCoy,  as  cash,  a  draft  drawn  by  the  Commercial  &  Railroad 
Bank  of  Vicksburg  on  the  Girard  Bank  of  Philadelphia,  and 
agreed  with  him  to  pay  McCoy's  note,  held  by  the  plaintiffs, 
Wood  &  Abbott  ;  and  in  an  action  on  this  promise  it  was  held 
that  the  plaintiffs  were  entitled  to  recover.  The  decision  is  put 
mainly  on  the  ground  that  the  bank,  having  taken  the  draft  as 
money,  received  it  in  trust  for  the  plaintiffs,  and  McCoy's  in- 
debtedness to  them  was  a  sufficient  consideration  for  the  crea- 
tion and  support  of  the  trust  thus  created  in  their  favor,  and 
the  right  to  the  use  of  the  money  pr.ssed  thereby  to  them,  so 
as  to  entitle  them  to  demand  and  receive  it  from  the  bank. 
Perhaps  the  true  reason,  if  there  be  one,  for  the  distinction  is 
here  indicated — viz.,  where  the  promisor  receives  the  fund,  or 
other  consideration  of  the  promise  in  trust  for  a  third  party, 
there  the  action  may  be  in  the  name  of  the  latter.  But,  with 
the  exception  hereafter  noticed,  in  all  other  cases  the  action 
must  be  brought  in  the  name  of  him  from  whom  the  considera- 
tion moved,  or  who  was  the  meritorious  cause  of  it,  whether, 
as  in  Blymire  v.  Boistle,  Ramsdale  v.  Horton,  3  Barr,  330,  and 
other  like  cases,  the  promise  be  made  to  him  from  whom  the 
consideration  moved,  or,  as  in  Edmondson  v.  Penney,  i  Barr, 
334,  and  Comfort  v.  Eisenbies,  i  Jones,  13,  it  be  made  to  a 
stranger  to  the  consideration.  The  exception  to  the  rule  is  in  the 
case  of  an  express  promise,  upon  a  sufficient  consideration,  to 
pay  a  third  party,  where  the  latter  participates  in  the  contract  ; 
and  in  such  case,  as  we  have  seen  in  Esling  v.  Zantzinger,  the 
action  may  be  maintained,  by  reason  of  the  privity  of  contract, 
in  the  name  of  the  third  party. 

"  In  Morrison  v.  Berkey,  6  Watts,  349,  a  case  somewhat  re- 
sembling the  present,  Morrison  agreed  with  Vickroy  to  pay  a 
debt,  due  by  the  firm  of  which  Vickroy  was  a  member,  for 
which  Berkey  was  surety.  Berkey  paid  the  debt,  and  sued 
Morrison  on  his  agreement  ;  and  it  was  held  that,  being  a 
stranger  to  the  consideration,  as  between  Morrison  and  Vickroy, 
Berkey  could  not  recover.  So  also  in  Cummings  v.  Klapp, 
5  W,  &  S.  511.  it  is  ruled  that  a  promise  to  a  constable  to  pay 
the  amount  of  an  execution  in  his  hands  can  only  be  enforced 
by  an  action  in  the  name  of  the  constable  who  gave  the  indul- 
gence, and  from  whom,  therefore,  the  consideration  moved,  to 
whom  the  promise  was  made,  and  who  was  the  party  beneficially 
interested  therein,  and  not  in  the  name  of  the  plaintiff  in  the 
execution,  who  was  a  stranger  to  the  contract  and  consideration. 

"  In  none  of  the  cases  to  which  reference  has  been  made  is 


794  KELLY   t'.    ROBERTS.  [CHAP.  III. 

there  any  rule  laid  down  which  will  enable  the  plaintiff  to 
maintain  this  action,  and  a  careful  examination  induces  the 
belief  that  none  can  be  found  in  our  reports.  The  promise  was 
not  made  to  the  plaintiff,  or  for  his  use  and  benefit.  The  con- 
sideration did  not  move  from  him,  the  defendant  has  received 
nothing  in  trust  for  him,  and  there  is  no  privity  of  contract 
whatever  between  the  parties. 

"  But  if  tliere  could  be  any  doubt  as  to  the  right  of  the  plain- 
tiff to  maintain  an  action  on  defendant's  contract  for  his  own 
use,  it  is  clear  that  the  suit  must  be  brought  in  the  name  of 
Getty,  the  contracting  party.  And  that  this  is  not  a  mere  tech- 
nical objection  is  shown  in  Berkey  v.  Morrison,  because,  in  that 
form  of  suit,  the  defendant  will  have  the  benefit  of  any  defence 
which  he  may  have  against  Getty.  For  these  reasons  we.  are 
clearly  of  the  opinion  that  upon  the  reserved  question  judg- 
ment should  be  entered  in  favor  of  the  defendant." 

The  plaintiff  thereupon  sued  out  this  writ,  and  assigned  for 
error  the  entry  of  judgment  in  favor  of  defendant. 

S.  H.  Geyer  for  plaintiff  in  error. 

Barton,  for  defendant  in  error,  furnished  no  printed  argu- 
ment. 

The  opinion  of  the  Court  was  delivered  November  4th,  1861. 

Per  Curiam.  This  judgment  seems  to  us  fully  justified  by 
the  opinion  of  the  learned  judge  of  the  Court  below,  and  we  do 
not  repeat  his  argument.  And  we  do  not  consider  that  this 
decision  conflicts  with  cases  deciding  that  an  action  lies  in  favor 
of  the  creditor  when  there  is  a  promise  directly  to  him,  6  Har- 
ris, 96,  or  where  his  debtors  were  partners  and  had  dissolved 
partnership,  and  he  sues  only  those  who  continue  the  business, 
and  have  agreed  to  pay  the  partnership  debts.     7  Harris,  273, 

Judgment  affirmed. 


JOHN    KELLY,   Sheriff  of  New  York,  Respondent,  v. 
MORRIS    ROBERTS,  Jr.,   Appellant. 

In  the  Court  of  Appeals  of  New  York,  June  12,  1869. 

[Reported  in  40  New  York  Reports  432.  j 

Appeal  from  the  judgment  of  the  Supreme  Court  in  the  first 
district,  affirming  a  judgment  for  the  plaintiff  upon  the  report 
of  a  referee. 

The  action  was  brought  under  §  232  of  the  Code,  by  the 
plaintiff,    as   sheriff   of   the   county   of    New   York,    holding    an 


SEC.  I.]  KELLY   r.    ROBERTS.  795 

attachment  against  the  property  of  Everett  &  Jones,  to  recover 
the  amount  of  a  debt  alleged  to  be  due  from  the  defendant  to 
them. 

The  referee,  to  wliom  tlie  cause  was  referred,  reported,  among 
other  matters,  not  material  to  the  questions  discussed  in  the 
opinion,  the  following  facts  and  conclusions  : 

That  on  or  about  March  29th,  1861,  a.d.,  the  defendant  pur- 
chased from  Thomas  R.  Everett  and  Robert  O.  Jones  (then 
composing  the  copartnership  firm  of  Everett  &  Jones),  all  the 
goods,  stock,  and  propert}'  owned  by  them  in  the  store  then 
occupied  by  them,  known  as  No.  284  Fulton  Street,  in  the  city 
of  Brooklyn,  at  and  for  the  rate  of  30  per  cent  of  the  actual  cost 
thereof. 

That  the  said  Everett  &  Jones  and  the  said  defendant,  on  the 
said  March  29th,  executed,  under  their  hands  and  seals,  an 
agreement  for  the  said  sale  in  the  words  and  figures  following, 
to  wit  : 

"  Agreement  this  day  made  between  Thomas  R.  Everett  and 
Robert  O.  Jones,  both  of  the  city  of  Brooklyn, State  of  New 
York,  and  doing  business  in  said  city  of  Brooklyn,  under  the  firm 
name  of  Everett  &  Jones,  of  the  first  part,  and  Morris  Roberts, 
Jr.,  of  the  city  of  New  York  and  State  aforesaid,  of  the  second 
part,  witnesseth  as  follows  : 

"  The  said  parties  of  the  first  part,  in  consideration  of  the 
sum  of  $1  to  them  in  hand  paid,  and  in  consideration  of  the 
covenant  hereinafter  contained  on  the  part  of  the  party  of  the 
second  part,  hereby  grant,  sell,  assign,  transfer  and  set  over  to 
the  said  party  of  the  second  part,  all  the  goods,  stock,  and 
property  now  owned  and  belonging  to  the  parties  of  the  first 
part,  and  in  the  store  now  and  heretofore  occupied  by  the  said 
parties  of  the  first  part,  and  known  as  No.  284  Fulton  Street, 
in  said  city  of  Brooklyn,  to  have  and  to  hold  the  same  unto  the 
said  party  of  the  second  part,  his  heirs,  executors,  administra- 
tors and  assigns  forever  ;  and  the  said  party  of  the  second  part, 
in  consideration  of  the  foregoing,  hereby  agrees  to  pay  unto  the 
said  parties  of  the  first  part,  at  and  after  the  rate  of  30  per  cent 
upon  the  actual  costs  of  said  goods,  property  and  stock. 

"  And  it  is  hereby  mutually  agreed  that,  for  the  purpose  of 
arriving  at  the  amount  which  the  said  party  of  the  second  part 
is  to  pay  unto  the  said  parties  of  the  first  part,  in  pursuance  of 
this  agreement,  an  inventory  shall  forthwith  be  taken  of  said 
goods,  stock,  and  property,  by  the  parties  to  these  presents, 
which  said  inventory  shall  specify  the  actual  costs  of  the  re- 
spective articles  of  property  hereby  sold  to  the  party  of  the  sec- 


796  KELLY   v.    ROBERTS.  [CHAP.  III. 

ond  part,  and  upon  the  completion  of  said  inventory,  the  same 
shall  be  annexed  to  this  instrument,  and  marked  schedule  A. 

"  In  witness  whereof  the  parties  to  these  presents  have  here- 
unto set  their  hands  and  seals,  the  29th  day  of  March,  in  the 

year  1861. 

"  Thomas  R.  Everett,   [L.  S.] 

"  Robert  O.  Jones,         [L.  S.] 

"  Morris  Roberts,  Jr.,  [L.  S.]" 

The  actual  costs  of  the  said  goods,  stock,  and  property  was 
$9000,  and  the  sum  found  (upon  ascertaining  such  costs)  to  be 
payable  by  the  said  defendant  was  $2700. 

It  was  verbally  agreed  between  the  aforesaid  parties  that  the 
consideration  for  the  said  purchase  should  be  paid  by  the  said 
defendant  in  the  following  manner  : 

.  .  .  That  he  should  use  a  portion  of  the  purchase-money  by 
paying  to  certain  parties  then  composing  the  mercantile  firm  of 
Cummings,  Simpson  &  Armstrong,  a  promissory  note  for  $400, 
then  held  by  the  last-named  firm,  and  which  was  made  by  the 
said  firm  of  Everett  &  Jones,  and  was  payable  in  the  month  of 
April  then  next. 

That  he  should  use  a  further  portion  of  the  purchase-money 
by  paying  to  certain  parties  then  composing  the  mercantile  firm 
of  Arnold,  Constable  &  Company  a  promissory  note  of  $300, 
then  held  by  the  last-named  firm,  and  which  was  made  by  the 
said  firm  of  Everett  &  Jones,  and  was  payable  in  the  month  of 
May  then  next. 

And  he  was,  by  such  agreement,  to  retain  in  his  hands  the 
money  requisite  for  the  payment  of  the  said  notes,  and  pay  the 
same  at  the  maturity  thereof.   .   .   . 

That  on  April  13th,  1861,  on  the  application  of  William  M. 
Bliss,  William  A.  Wheelock,  Austin  H.  Kelly,  and  Edward 
Merritt,  plaintiffs,  a  warrant  of  attachment  was  issued  out  of 
the  Supreme  Court,  by  and  under  the  hand  of  the  Hon.  T.  W. 
Clerke,  one  of  the  justices  of  the  said  Court,  against  the  prop- 
erty of  the  said  Thomas  R.  Everett  and  Robert  O    Jones 

Which  said  warrant  was  on  the  same  day  delivered  to  John 
Kelly,  the  sheriff  of  the  city  and  county  of  New  York,  to  be 
executed. 

That  on  April  14th,  1861,  the  said  sheriff,  by  one  of  his  depu- 
ties, served  the  said  warrant  of  attachment  on  the  defendant 
herein,  by  delivering  to  the  said  defendant  herein  a  copy  of  the 
said  warrant  of  attachment,  together  with  a  notice  endorsed 
thereon,  in  the  words  and  figures  following — that  is  to  say  : 

"  I  hereby  certify  the  within  to  be  a  true  copy  of  the  original 


SEC.  I.]  KELLY   V.    ROBERTS.  797 

warrant  of  attachment  as  served  by  me  in  this  suit,  and  that 
the  attachment,  of  whicli  the  within  is  a  copy,  is  now  in  my 
hands,  and  that  in  it  I  am  commanded  to  attach  and  .safely  keep 
all  the  estate,  real  and  personal,  of  the  said  Thomas  R.  Everett 
and  Robert  O.  Jones,  the  within  named  debtors,  within  my 
county  (except  such  articles  as  are  by  law  exempt  from  execu- 
tion), with  all  books  of  accounts,  vouchers,  and  papers  relating 
thereto  ;  and  that  all  such  property  and  effects,  rights  and 
shares  of  stock,  with  interest  thereon,  and  dividends  therefrom, 
and  the  debts  and  credits  of  the  said  Thomas  R.  Everett  and 
Robert  O.  Jones,  the  within  named  debtors,  now  in  your  pos- 
session, or  under  your  control  are,  or  which  may  come  into 
your  possession,  or  under  your  control,  will  be  liable  to  said 
warrant  of  attachment.  And  you  are  hereby  required  to  deliver 
all  such  property,  etc.,  into  my  custody  without  delay,  with  a 
certificate  thereof. 

"  Dated  New  York,  April  13th,  1861. 
"  Yours,  etc., 

"  John  Kelly, 
'  *  Sheriff  of  the  City  and  County  of  New  York. 

"  H.  Crombie, 
"  Deputy  Sheriff. 
"  To  Morris  Roberts,  Jr.,  Esq.,  181  Eighth  Avenue." 

That  the  said  sheriff,  by  his  deputy,  at  the  same  time  de- 
manded of  the  said  Roberts  (the  defendant  herein)  a  certificate 
of  what  property  belonging  to  the  said  defendants  in  the  attach- 
ment (Thomas  R.  Everett  and  Robert  O.  Jones),  or  either  of 
them,  he  had  in  his  possession,  or  under  his  control,  and  of  any 
debts  due  or  owing  from  him  to  either  or  both  of  said  defend- 
ants (last  named),  and  the  said  Roberts  neglected  and  refused 
to  give  to  the  said  sheriff  any  certificate  thereof. 

That  thereupon,  on  April  26th,  1861,  an  order  was  obtained, 
upon  the  application  of  the  aforesaid  plaintiffs  in  attachment, 
under  the  hand  of  the  Hon.  George  G.  Barnard,  one  of  the 
justices  of  the  said  Supreme  Court,  requiring  the  defendant 
herein  (Morris  Roberts,  Jr.)  to  appear  before  the  said  justice  to 
be  examined  on  oath,  concerning  any  property  belonging  to 
the  said  Everett  &  Jones,  or  either  of  them,  held  by  him,  and 
concerning  any  debts  owing  by  him  to  the  said  Everett  &  Jones, 
or  either  of  them. 

In  pursuance  of  which  said  order  the  said  defendant  herein 
appeared  before  the  said  justice,  and  on  May  nth,  1861,  was 
examined  touching  the  matters  in  the  said  order  referred  to. 

And  after  such   examination,    on    May    i8th,    1861,    the    said 


ygS  KELLY   V.    ROBERTS.  [cHAP.  ill. 

sheriff  of  the  city  and  county  of  New  York,  by  his  deputy, 
served  the  said  warrant  of  attachment  again  upon  defendant 
herein,  by  delivering  to  him  a  copy  thereof,  with  a  notice 
thereon  endorsed,  dated  May  13th,  1861,  in  the  same  words  and 
figures  as  the  said  notice  before  served,  as  above  set  forth,  save 
only  that  there  was  added  to  such  further  notice  these  words — 
viz.:  "Particularly  the  sum  of  $1200,  or  thereabouts,  belong- 
ing to  the  said  debtors,  now  in  your  hands,  with  a  certificate 
thereof." 

And,  thereafter,  on  June  28th,  1861,  this  action  was  com- 
menced,  .   .   . 

I  further  find  that  the  aforesaid  firms  of  Cummings,  Simp- 
son &  Armstrong  and  Arnold,  Constable  &  Company  have  not 
been,  nor  have  either  of  them  been,  notified  of  the  aforesaid 
agreement  between  the  said  Everett  &  Jones  and  the  defendant 
in  respect  to  the  payment  of  a  portion  of  the  purchase-money 
for  the  aforesaid  goods  to  them  respectively. 

That  they  have  not,  nor  have  either  of  said  firms,  in  any  man- 
ner, assented  to  the  provisions  so  made  for  such  payment,  nor 
required  such  payment  from  the  said  Roberts. 

That  the  said  Roberts  has  never  paid  to  them,  or  either  of 
them  the  moneys  so  agreed  to  be  paid  to  them,  nor  any  part 
thereof,  and  has  never  promised  or  agreed  with  them  or  with 
either  of  them  to  make  such  payment.   .   .   . 

I  do  further  find  that  the  amount  due  to  William  M.  Bliss, 
William  A.  Wheelock,  Austin  A.  Kelly,  and  Edward  Merritt, 
the  plaintiffs  in  the  said  attachment,  and  mentioned  therein, 
and  in  the  pleadings  in  this  action,  and  for  the  satisfactibn  of 
which  the  said  attachment  was  issued,  is  $496.15,  with  interest 
from  February  17th,  1861,  which  interest  is  $44.77,  and  that  the 
sheriff's  poundage  and  fees  upon  said  attachment  amount  (so 
far  as  they  appear  from  any  facts  shown  on  the  trial  hereof  or 
admitted  in  the  pleadings  herein)  to  the  sum  of  $12.40  ;  which 
said  last-mentioned  three  sums  amount  to  $554.32,  and  that  no 
other  costs  or  expenses  incurred  by  the  said  sheriff,  or  by  the 
aforesaid  plaintiffs,  in  the  said  attachment,  were  in  any  manner 
proved  or  made  to  appear  on  the  trial  hereof. 

My  conclusions  of  law  from  the  aforesaid  facts  are  : 
*********** 

Third.  In  respect  to  the  sum  of  $700;  residue  of  the  consider- 
ation of  the  said  purchase,  and  which  it  was  agreed  he  should 
pay  to  the  said  firms  of  Cummings,  Simpson  &  Armstrong  and 
Arnold,  Constable  &  Company. 

I.  That  the  said  firms  last  mentioned  acquired  no  such  title 
to  the  said  payment,  and  the  defendant  incurred  no  such  liabil- 


SEC.  I.]  KELLY    7'.    ROBERTS.  799 

ity  to  them,  as  will  avail  to  defeat  the  claim  of  the  plaintiff  in 
this  action,  to  recover  the  same  as  the  money  of  Everett  & 
Jones.  ...  3.  That  subject  to  the  right  of  the  plaintiff  herein 
to  recover,  to  the  extent  of  such  sum  as  is  sufficient  to  satisfy 
the  aforesaid  demand  of  the  said  plaintiffs  in  the  said  attach- 
ment, with  the  interest,  together  with  the  costs  and  expenses, 
the  defendant  in  this  action  is  entitled  to  have  and  retain  the 
said  sum,  and  is  not  liable  therefore  to  the  aforesaid  defendants 
in  the  attachment  (Everett  &  Jones),  and  that,  therefore,  the 
recovery  of  the  plaintiffs  in  this  action  should  be  limited  to  the 
sum  required  to  satisfy  the  said  demand  of  the  plaintiffs  in  the 
said  attachment,  with  the  interests,  costs,  and  expenses  afore- 
said. 

I  do,  therefore,  find,  determine,  and  decide  that  the  plaintiff 
in  this  action  is  entitled  to  recover  from  the  defendant  herein 
the  aforesaid  amount  of  $554.32,  and  also  to  recover  his  costs 
of  this  suit  ;  and  that  the  said  plaintiff  have  judgment  against 
the  said  defendant  accordingly. 

John  Graham  and  Reynolds  for  appellant. 

Prentiss  6^  Flanders  for  respondent. 

James,  J.  Had  the  debtors  and  the  defendant  Roberts  made! 
it  a  condition  of  the  sale  of  the  goods  of  the  former  to  the  latter, 
that  the  defendant  should  pay  a  designated  part  of  the  consid- 
eration of  the  sale  to  Arnold,  Constable  &  Company,  and  a  part 
to  Cummings,  Simpson  &  Armstrong,  the  cases  of  Berly  v. 
Taylor,  5  Hill,  533  ;  Williams  v.  Fitch,  iS  N.  Y.  546  ;  Law- 
rence V.  Fox,  20  N.  Y.  268  ;  Gridley  v.  Gridley,  24  N.  Y.  130  ; 
and  Lowry  v.  Steward,  25  N.  Y.  239,  would  seem  to  warrant 
the  proposition  that  a  trust  was  created  for  the  benefit  of  those 
two  firms,  which  they  might  aflfirm  and  enforce,  and  that  a  suit 
in  equity  would  lie  in  their  favor  for  that  purpose.  And  those 
and  other  cases  in  this  State  affirm  the  more  general  proposi- 
tion, that  where  a  promise  is  made  upon  a  valid  consideration 
to  one  person  for  the  benefit  of  another,  the  latter  may  main- 
tain an  action  thereon.  See  above  cases,  and  the  Delaware  & 
Hudson  Canal  Company  v.  Westchester  County  Bank,  4  Denio, 
97  ;  Dingeldien  v.  Third  Avenue  R.  R.  Co.,  37  N.  Y.  575,  and 
cases  cited. 

But  here  the  sale  of  the  goods  was  consummated  by  a  trans- 
fer thereof,  under  the  hands  and  seals  of  the  parties  thereto, 
and  the  covenant  by  the  defendant  was  express  to  pay  the  price 
to  the  vendors,  Everett  &  Jones.  On  the  completion  of  the 
inventory  the  precise  relation  between  the  defendant  and  Ever- 
ett &  Jones  was  that  the  latter  were  creditors  of  the  defendant 
to  the  amount  of  the  purchase-money.     There  was  no  trust  and 


8oo  KELLY   V.    ROBERTS.  [cHAP.  III. 

'  no  condition  annexed  to  the  sale.     The  defendant  owed  Ever- 
ett &  Jones  the  price  of  the  goods. 

The  question  presented   therefore   oy  this  case  is  whether  a 
']  verbal  agreement  between  creditor  and   debtor,  upon   no  new 
!  consideration,  that  instead  of  paying  the   debt  to  the  creditor, 
'  the  debtor  will  pay  it  to  a  third  person,  the  debtor  himself  hav- 
ing no  interest  in  the  question  to  whom  the  money  shall  be  paid, 
is   final   and   irrevocable  by  the  creditor,   although  such  third 
\''  /        person  has  given  no  assent  thereto,  nor  received   any  notice  of 
such  agreement.     It  is  not  enough  to  claim  in  answer  to  this 
:  question,  that  the  third  person,  on  receiving  notice  thereof,  may 
accept  the  promise  and  sue  thereon,  the  original  creditor  still 
assenting.     Cases  which  hold  that  if  money  be  paid  to  A.  to  be 
paid  over  to  B.,  the  latter  may  sue  for  and  recover  the  same,  as 
money  had  and  received  to  his  use  by   A.  do   not  answer  this 
question. 

It  would  be  a  very  liberal  extension  of  these  cases  if  it  should 
be  held  that  if  A.  hand  money  to  his  own  servant  or  agent,  with 
instructions  to  carry  and  deliver  it  to  B.,  which  the  servant  or 
agent  agrees  to  do,  such  instructions  are  irrevocable,  and 
although  A.  should  change  his  mind  before  his  agent  or  servant* 
sets  out  on  his  errand,  he  could  not  countermand  the  instruc- 
tions and  take  back  his  money.  Until  such  instructions  have 
been  acted  upon  in  some  manner,  the  servant  continues  servant 
of  A.,  and  only  his  servant.  So  where  one  hands  money  to  his 
servant,  agent,  or  friend,  with  a  request  that  he  visit  the  city 
and  therewith  pay  a  note  due  or  about  to  become  due,  can  it  be 
seriously  questioned  that,  if  before  anything  further  is  done, 
such  one  concludes  to  use  the  money  for  some  other  purpose, 
or  to  pay  some  other  debt,  he  may  do  so  ?  I  think  not.  And 
the  cases  above  referred  to  do  not  hold  the  contrary  nor  any- 
thing like  it. 

Privity  of  contract  was  once  deemed  of  some  importance  in 
testing  the  right  of  one  who  sought  to  enforce  an  agreement  ; 
and,  although  where  a  trust  has  been  created  for  the  benefit  of 
a  third  person  assented  to  by  him,  it  has  been  held  to  create  an 
implied  contract  in  equity  or  at  law,  according  to  circum- 
stances, and  to  be  irrevocable,  the  mere  agreement  of  third 
persons,  without  consideration,  not  acted  upon  by  either,  nor 
communicated  to  him  in  whose  apparent  favor  it  is  made,  is  as 
much  the  subject  of  revocation  or  release  as  if  the  latter  was 
not  named  therein.  The  present  case,  however,  is  not  one  of 
trust  or  delivery  of  money  or  property  to  one  to  be  paid  or  de- 
livered to  another  ;  it  is  not,  therefore,  necessary  to  open  or 
discuss  the  question   whether,  in  the  cases  supposed,  an  assent 


SEC.  I.]  KELLY   V.   ROBERTS.  8oi 

gf  the   third   person   is  to  be  presumed,  or  whether  he   has  an 
indefeasible  right  to  accept  and  sue  for  the  benefit. 

The  proof  and  the  report  of  the  referee  in  this  case  do  not,  in 
terms,  state  the  time  when  the  parol  agreement  by  the  defend- 
ant to  pay  the  debt  due  Arnold,  Constable  &  Company  and 
others  was  made.  It  would  seem  to  have  been  not  only  after 
the  actual  assignment  and  the  covenant  by  the  defendant  to  pay 
Everett  &  Jones  therefor,  but  at  or  after  the  taking  of  the  in- 
ventory and  the  ascertainment  thereby  of  the  amount  which,  by 
such  covenant,  the  defendant  was  bound  to  pay,  upon  which 
the  amounts  were  apportioned  and  his  notes  for  so  much  as  he 
^ave  notes  for  were  made. 

But  the  inquiry  for  the  precise  date  is  not  material,  for  if  the 
verbc.l  agreement  be  assumed  to  have  been  prior  to  or  contem- 
poraneous with  the  written  covenant  under  the  hand  and  seal 
of  the  defendant,  Roberts,  to  pay  the  amount  of  the  purchase- 
money  to  Everett  &  Jones,  then  the  rule  that  all  prior  or.  con- 
teniporaneous  parol  negotiations  and  agreements  are  merged  in 
the  writt^en  instrument  forbids  its  operation.  Such  negotiations 
and  agreements  cannot  be  permitted  to  control  the  covenant 
If  Everett  &  Jones  had  sued  the  defendant  upon  that  covenant 
for  the  price  of  the  goods,  he  could  not  defend  by  proof  of  such 
piior  or  contemporaneous  parol  agreement.  He  would  be 
debtor  to  them  according  to  the  terms  of  his  covenant,  and  his 
debt  to  them  was  subject  to  attachment. 

If,  on  the  other  hand,  it  be  assumed  that  after  the  making  of 
the  covenant  and  the  ascertainment  of  the  price,  the  vendors 
and  the  defendant  agreed  that  a  part  of  the  price  should  be 
paid  to  Arnold,  Constable  &  Company  and  others  to  satisfy 
debts  of  the  vendors,  the  case  is  not  altered  ;  this  did  not  con- 
stitute a  delivery  of  money  or  property  to  the  defendant  to  be 
paid  to  others.  There  was  no  trust,  no  acceptance  of  anything 
to  create  what  has  been  in  some  cases  deemed  an  agency  for 
such  others.  It  was  purely  and  simply  an  executor}'  contract 
without  consideration  to  pay  what  the  defendant  owes  Ever- 
ett &  Jones  to  their  creditors.  This  was  in  effect  a  license  ;  if 
he  paid  it,  very  well,  he  would  thereby  have  satisfied  so  much 
of  his  debt  to  Everett  &  Jones. 

The  simple  inquiry  whether  if  a  creditor  directs  his  debtor  to 
pay  his  note  to  a  third  person,  and  he  assents,  such  creditor  can 
revoke  the  direction,  has  never  been  decided  in  the  negative, 
and  I  think  it  cannot  be  so  decided  on  any  principle. 

There  is  no  trust  ;  there  is  no  new  consideration  ;  such  debtor 
has  no  interest  in  the  appropriation.  If  in  reliance  on  the  in- 
struction he  pays  or  places  himself  in  any  new  position,  then 


\^ 


8o2  KELLY   V.   ROBERTS.  [cHAP.  III. 

indeed  he  is  protected.  But  while  nothing  is  done  the  debt  he 
owes  is  the  property  of  the  creditor. 

Suppose,  for  example,  the  debtor  having  received  such  a 
direction  and  agreed  thereto,  nevertheless  neglects  to  pay  to 
any  one.  Can  it  be  doubted  that  the  original  creditor  could 
maintain  an  action  for  the  oiiginal  debt  ?  It  would  be  a  good 
defence  that  he  had  paid  it  to  a  third  person  pursuant  to  such 
an  agreement,  but  the  mere  agreement  unperformed  and  not 
acted  upon  at  all  would  be  no  defence.' 

In  this  case  Roberts  had  done  nothing,  he  had  not  performed 
the  agreement,  or  acted  in  any  manner  on  the  license  he  there- 
fore still  remained  debtor  to  Everett  &  Jones  as  he  was  before 
the  verbal  agreement  was  made. 

If  these  views  are  correct,  then  the  debt  due  from  the  defend- 
ant, when  the  attachment  was  issued   in  favor  of  creditors  of 

>  It  is  admitted  by  the  pleadings,  and  was  neither  controverted  nor  sought 
to  be,  by  either  party  at  the  trial,  that,  at  the  time  the  agreement  sued  on 
was  entered  into  between  plaintiff  and  defendant,  the  former  was  indebted 
to  the  State  in  a  certain  sum  for  stumpage  on  the  logs  so  sold  by  him  to 
defendant,  and  that,  as  part  of  the  stipulated  purchase  price,  defendant,  by 
the  terms  of  the  agreement,  promised  the  plaintiff  to  pay  the  amount  of  his 
said  debt  to  the  State,  within  a  specified  time  therein  named  ;  and,  though 
such  time  of  payment  had  passed,  the  debt  had  not  been  paid  by  either 
party,  but  remained  due  and  unpaid  when  the  action  was  brought.  Upon 
these  facts,  it  was  claimed  by  the  defendant  m  his  answer,  and  insisted  on 
at  the  trial,  as  a  defence,  that  the  plaintiff  could  maintain  no  action  upon  a 
breach  of  this  stipulation  of  the  defendant,  until  he  had  first  paid  the  debt 
himself  ;  because,  under  the  rule  laid  down  by  this  Court  in  Sanders  v. 
Clason,  13  Minn.  379,  the  defendant  was  legally  holden  to  the  State  upon 
such  his  promise  to  the  plaintiff.  The  refusal  of  the  Court  so  to  charge  the 
jury  upon  this  branch  of  the  case  is  assigned  as  error  in  this  Court. 

The  defendant's  undertaking  was  not  one  of  indemnity.  It  was  an 
affirmative,  unconditional  promise  to  the  plaintiff,  upon  a  valid  considera- 
tion, to  pay,  within  a  specified  time,  a  definite  sum  of  money  to  a  third 
party — the  State — for  his  benefit.  Though,  within  the  doctrine  of  the  New 
York  cases  upon  this  subject,  as  well  as  our  own,  the  State  might  have 
maintained  an  action  against  defendant  upon  a  breach  of  its  agreement,  it 
is  well  settled,  both  upon  principle  and  authority,  that  the  defendant  also 
remained  liable  to  plaintiff,  upon  its  promise,  by  privity  of  contract  ;  and  a 
cause  of  action  accrued  in  favor  of  the  latter,  which  became  complete  im- 
mediately upon  its  breach  by  the  failure  of  the  defendant  to  make  the  pay- 
ment at  the  stipulated  time.  It  is  not  neccessary  for  the  promisee  in  such 
a  case  to  discharge  the  debt  before  asserting  his  right  of  action  against  the 
promisor,  growing  out  of  the  breach  or  his  own  agreement.  The  measure 
of  damages  in  a  case  of  this  kind  is  the  amount  of  the  debt  agreed  to  be 
paid.  The  ruling  of  the  Court  below,  therefore,  upon  this  subject  was  cor- 
rect. Port  V.  Jackson,  17  John.  239  ;  s.  c,  Jackson  v.  Port,  17  John.  479  ^ 
Matter  of  Negus,  7  Wend.  499  ;  Thomas  v.  Allen,  i  Hill,  145  ;  Churchill  v. 
Hunt,  3  Denio,  321  ;  Wicker  v.  Hoppock,  6  Wall.  94.— Cornell,  J.,  Mer. 
riam  v.  Pine  City  Lumber  Co.,  23  Minn.  314,  322-323. — Ed. 


SEC.  I.J  VROOMAN    V.    TURNER.  803 

Everett  &  Jones,  was  a  debt  due  as  matter  of  law  to  them,  ami 
the  attachment  was  operative. 

I  think  the  service  of  the  attachment  sufficiently  identified  it, 
and  that  the  judgment  herein  should  be  affirmed. 

Grover,  Woodruff,  Mason,  JJ.,  were  for  affirmance  on  the 
ground  stated  in  opinion  of  James,  J.  Lott,  J.,  was  also  for 
affirmance,  on  the  ground  that  the  fair  inference  from  the  re- 
port was  that  the  verbal  agreement  was  made  at  the  same  time 
with  the  bill  of  sale,  and  therefore  merged  into  it  and  was  void. 

Hunt,  C.J.,  and  Daniels,  J.,  were  for  reversal. 

Judgment  affirmed. 


CHARLES  W.  VROOMAN,  Guardian,  etc.,  Respondent,  v. 
HARRIET    B.   TURNER,   Impleaded,  etc.,   Appellant. 

In  the  Court  of  Appeals  of  New  York,  April  20,  1877. 

[Reported  in  69  Ne'w  York  Reports  280.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  second  judicial  department,  affirming  a  judgment 
in  favor  of  plaintiff,  entered  upon  the  report  of  a  referee. 
(Reported  below,  8  Hun,  78.) 

This  was  an  action  to  foreclose  a  mortgage. 

The  mortgage  was  executed  in  August,  1873,  by  defendant 
Evans,  who  then  owned  the  mortgaged  premises.  He  con- 
veyed the  same  to  one  Mitchell,  and  through  various  mesne  con- 
veyances the  title  came  to  one  Sanborn.  In  none  of  these  con- 
veyances did  the  grantee  assume  to  pay  the  mortgage.  Sanborn 
conveyed  the  same  to  defendant  Harriet  B.  Turner,  by  deed 
which  contained  a  clause  stating  that  the  conveyance  was  sub- 
ject to  the  mortgage,  "  which  mortgage  the  party  hereto  of  the 
second  part  hereby  covenants  and  agrees  to  pay  off  and  dis- 
charge, the  same  forming  part  of  the  consideration  thereof." 

The  referee  found  that  said  grantee,  by  so  assuming  payment 
of  the  mortgage,  became  personally  liable  therefor,  and  directed 
judgment  against  her  for  any  deficiency.  Judgment  was  en- 
tered accordingly. 

Edward  T.  Bartlett  for  the  appellant. 

N:  H.  Clemefit  for  the  respondent. 

Allen,  J.  The  precise  question  presented  by  the  appeal  in 
this  action  has  been  twice  before  the  courts  of  this  State,  and 
received  the  same  solution  in  each.  It  first  arose  in  King  v. 
Whitely,  10  Paige,  465,  decided  in   1843.     There  the  grantor  of 


8o4  VROOMAN   V.   TURNER.  [cHAP.  III. 

an  equity  of  redemption  in  mortgaged  premises,  neither  legally 
nor  equitably  interested  in  the  payment  of  the  bond  and  mort- 
gao-e  except  so  far  as  the  same  were  a  charge  upon  his  interest 
in  the  lands,  conveyed  the  lands  subject  to  the  mortgage,  and 
the  conveyance  recited  that  the  grantees  therein  assumed  the 
mortgage,  and  were  to  pay  off  the  same  as  a  part  of  the  consid- 
eration of  such  conveyance,  and  it  was  held  that  as  the  grantor 
in  that  conveyance  was  not  personally  liable  to  the  holder  of 
the  mortgage  to  pay  the  same,  the  grantees  were  not  liable  to 
the  holder  of  such  mortgage  for  the  deficiency  upon  a  fore- 
closure and  sale  of  the  mortgaged  premises.  It  was  conceded 
by  the  chancellor  that  if  the  grantor  had  been  personally  liable 
to  the  holder  of  the  mortgage  for  the  payment  of  the  mortgage 
debt,  the  holder  of  such  mortgage  would  have  been  entitled  in 
equity  to  the  benefit  of  the  agreement  recited  in  such  convey- 
ance, to  pay  off  the  mortgage  and  to  a  decree  over  against  the 
grantees  for  the  deficiency.  This  would  have  been  in  accord- 
ance with  a  well-established  rule  in  equity,  which  gives  to  the 
creditor  the  right  of  subrogation  to  and  the  benefit  of  any 
security  held  by  a  surety  for  the  reinforcement  of  the  principal 
debt,  and  in  the  case  supposed,  and  by  force  of  the  agreement 
recited  in  the  conveyance,  the  grantee  would  have  become  the 
principal  debtor,  and  the  grantor  would  be  a  quasi  surety  for 
the  payment  of  the  mortgage  debt.  Halsey  v.  Reed,  9  Paige, 
446  ;  Curtis  v.  Tyler,  9  Paige,  432  ;  Burr  v.  Beers,  24  N.  Y.  178. 

King  V.  Whitely  was  followed,  and  the  same  rule  applied  by 
an  undivided  court  in  Trotter  v.  Hughes,  12  N.  Y.  74,  and  the 
same  case  was  cited  with  approval  in  Garnsey  v.  Rogers, 
47  N.  Y.  233. 

The  clause  in  the  conveyance  in  Trotter  v.  Hughes  was  not 
in  terms  precisely  like  that  in  King  v.  Whitely,  or  in  the  grant 
under  consideration.  The  undertaking  by  the  grantees  to  pay 
the  mortgage  debt  as  recited,  was  not  in  express  terms  or  as 
explicit  as  in  the  other  conveyances.  But  the  recital  was,  I 
think,  sufficient  to  justify  the  inference  of  a  promise  to  pay  the 
debt,  and  so  it  must  have  been  regarded  by  the  Court.  The 
case  was  not  distinguished  by  the  Court  in  any  of  its  circum- 
stances from  King  v.  Whitely,  but  was  supposed  to  be  on  all 
fours  with  and  governed  by  it.  Had  the  grantor  in  that  case 
been  personally  bound  for  the  payment  of  the. debt,  I  am  of  the 
opinion  that  an  action  would  have  been  sustained  against  the 
grantee  upon  a  promise  implied  from  the  terms  of  the  grant 
accepted  by  him  to  pay  it  and  indemnify  the  grantor.  It  must 
have  been  so  regarded  by  this  Court,  otherwise  no  question 
would  have  been  made  upon  it,  and  the  Court  would  not  have 


SEC.  I.J  VROOMAX   f.    TURNER.  805 

SO  seriously  and  ably  fortified  and  applied  the  doctrine  of  King  v. 
Whitely.  A  single  suggestion  that  there  was  no  undertaking 
by  the  grantee  and  no  personal  liability  for  the  payment  of  the 
debt  assumed  by  him,  would  have  disposed  of  the  claim  to 
charge  him  for  the  deficiency  upon  the  sale  of  the  mortgao^d 
premises.  The  rule  which  exempts  the  grantee  of  mortgaged 
premises  subject  to  a  mortgage,  the  payment  of  which  is 
assumed  in  consideration  of  the  conveyance  as  between  him  and) 
his  grantor,  from  liability  to  the  holder  of  the  mortgage  when 
the  grantee  is  not  bound  in  law  or  equity  for  the  payment  of 
the  mortgage,  is  founded  in  reason  and  principle,  and  is  not 
inconsistent  with  that  class  of  cases  in  which  it  has  been  held 
that  a  promise  to  one  for  the  benefit  of  a  third  party  may  avail 
to  give  an  action  directly  to  the  latter  against  the  promisor,  of 
which  Lawrence  z'.  Fox,  20  N.'  Y.  268,  is  a  prominent  example. 
To  give  a  third  party  who  may  derive  a  benefit  from  the  per- 
formance of  the  promise  an  action,  there  must  be,  first,  an  in- 
tent by  the  promisee  to  secure  some  benefit  to  the  third  party  ; 
and,  second,  some  privity  between  the  two,  the  promisee  and 
the  party  to  be  benefited,  and  some  obligation  or  duty  owing 
from  the  former  to  the  latter  which  would  give  him  a  legal  or 
equitable  claim  to  the  benefit  of  the  promise  or  an  equivalent 
from  him  personally. 

It  is  true  there  need  be  no  privity  between  the  promisor  and 
the  party  claiming  the  benefit  of  the  undertaking,  neither  is  it 
necessary  that  the  latter  should  be  privy  to  the  consideration  of 
the  promise,  but  it  does  not  follow  that  a  mere  volunteer  can 
avail  himself  of  it,  A  legal  obligation  or  duty  of  the  promisee 
to  him  will  so  connect  him  with  the  transaction  as  to  be  a  sub- 
stitute for  any  privity  with  the  promisor,  or  the  consideration 
of  the  promise,  the  obligation  of  the  promisee  furnishing  an 
evidence  of  the  intent  of  the  latter  to  benefit  him,  and  creating 
a  privity  by  substitution  with  the  promisor.  A  mere  stranger 
cannot  intervene  and  claim  by  action  the  benefit  of  a  contract 
between  other  parties.  There  must  be  either  a  new  considera- 
tion or  some  prior  right  or  claim  against  one  of  the  contracting 
parties  by  which  he  has  a  legal  interest  in  the  performance  of 
the  agreement. 

It  is  said  in  Garnsey  v.  Rodgers,  47  N.  Y.  233,  that  it  is  not  ^^ 
every  promise  made  by  one  person  to  another  from  the  perform- 
ance  of  which  a  third  person  would  derive  a  benefit  that  givesl  ^/ 
a  right  of  action  to  such  third  person,  he  being  privy  neither  to' 
the  contract  nor  the  consideration.  In  the  language  of  Rapallo, 
J.,  "  to  entitle  him  to  an  action,  the  contract  must  have  been 
made  for  his  benefit.     He  must  be  the   party  intended   to  be 


3o6  VROOMAN   V.   TURNER.  [cHAP.  III. 

benefited."  See  also  Turk  e-.  Ridge,  41  N.  Y.  201,  and  Merrill  z;. 
Green,  55  N.  Y.  270,  in  which,  under  similar  agreements,  third 
parties  sought  to  maintain  an  action  upon  engagements  by  the 
performance  of  which  they  would  be  benefited,  but  to  which 
they  were  not  parties  and  failed.  The  courts  are  not  inclined 
to  extend  the  doctrine  of  Lawrence  v.  Fox  to  cases  not  clearly 
within  the  principle  of  that  decision.  Judges  have  differed  as 
to  the  principle  upon  which  Lawrence  v.  Fox  and  kindred  cases 
rest,  but  in  every  case  in  which  an  action  has  been  sustained 
there  has  been  a  debt  or  duty  owing  by  the  promisee  to  the 
party  claiming  to  sue  upon  the  promise.  Whether  the  deci- 
sions rest  upon  the  doctrine  of  agency,  the  promisee  being 
regarded  as  the  agent  for  the  third  party,  who,  by  bringing  his 
action  adopts  his  acts,  or  upon  the  doctrine  of  a  trust  the  prom- 
isor being  regarded  as  having  received  money  or  other  thing 
for  the  third  party  is  not  material.  In  either  case  there  must 
be  a  legal  right,  founded  upon  some  obligation  of  the  promisee, 
in  the  third  party,  to  adopt  and  claim  the  promise  as  made  for 
his  benefit. 

In  Lawrence  v.  Fox  a  prominent  question  was  made  in  limine, 
whether  the  debt  from  Halley  to  the  plaintiff  was  sufficiently 
proved  by  the  confession  of  Halley  made  at  the  time  of  the  loan 
of  the  money  to  the  defendant.  It  was  assumed  that  if  there 
was  no  debt  proved  the  action  would  not  lie,  and  the  declaration 
of  Halley  the  debtor  was  held  sufficient  evidence  of  the  debt. 
Gray,  J.,  said  :  "  All  the  defendant  had  the  right  to  demand  in 
this  case  was  evidence  which  as  between  Halley  and  the  plain- 
tiff was  competent  to  establish  the  relation  between  them  of 
debtor  and  creditor."  In  Burr  v.  Beers,  24  N.  Y.  178,  and 
Thorp  V.  Keokuk  Coal  Co.,  48  N.  Y.  253,  the  grantor  of  the 
defendant  was  personally  liable  to  pay  the  mortgage  to  the 
plaintiff,  and  the  cases  were  therefore  clearly  within  the  prin- 
ciple of  Lawrence  v.  Fox,  Halsey  v.  Reed,  and  Curtis  v.  Tyler, 
supra.  See  also  Bosworth,  J.,  Doolittle  v.  Naylor,  2  Bos.  225  ; 
and  Ford  v.  David,  i  Bos.  569.  It  is  claimed  that  King  v. 
Whitely  and  the  cases  following  it  were  overruled  by  Law- 
rence V.  Fox.  But  it  is  very  clear  that  it  was  not  the  intention 
to  overrule  them,  and  that  the  cases  are  not  inconsistent.  The 
doctrine  of  Lawrence  v.  Foa,  although  questioned  and  criti- 
cised, was  not  first  adopted  in  this  State  by  the  decision  of  that 
case.  It  was  expressly  adjudged  as  early  as  1825  in  Farley  v. 
Cleveland,  4  Cow.  432,  affirmed  in  the  Court  for  the  correction 
of  errors  in  1827, /^r  totam  ciwiam,  and  reported  in  9  Cow.  639. 
The  chancellor  was  not  ignorant  of  these  decisions  when  he 
decided  King  v.  Whitely,  nor  was  Denio,  J.,  and  his  associates 


SEC.  I.]       NATIONAL  BANK  V.    GRAND  LODGE.         So/ 

unaware  of  them  when  Trotter  v.  Hughes  was  decided,  and 
Gray,  J.,  in  Lawrence  v.  Fox  says  the  case  of  Farley  v.  Cleve- 
land had  never  been  doubted. 

The  Court  below  erred  in  giving  judgment  against  the  appel- 
lant for  the  deficiency  after  the  sale  of  the  mortgaged  premises, 
and  so  much  of  the  judgment  as  directs  her  to  pay  the  same 
must  be  reversed  with  costs. 

All  concur  except  Earl,  J.,  dissenting. 

Judgment  accordingly. 


NATIONAL   BANK  v.  GRAND    LODGE. 

In   the    Supreme    Court   of   the   United    States,   October 

Term,  1878. 

\^Reported  in  9S  United  States  Reports  123.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  East- 
ern District  of  Missouri. 

This  is  an  action  by  the  Second  National  Bank  of  St.  Louis, 
Mo.,  against  the  Grand  Lodge  of  Missouri  of  Free  and  Accepted 
Ancient  Masons,  to  compel  the  payment  of  certain  coupons 
formerly  attached  to  bonds  issued  in  June,  1869,  by  the  Masonic 
Hall  Association,  a  corporation  existing  under  the  laws  of  the 
State  of  Missouri,  in  relation  to  which  bonds  the  Grand  Lodge, 
October  14th,  1869,  adopted  the  following  resolution  : 

"  Resolved,  That  this  Grand  Lodge  assume  the  payment  of  the 
^200,000  bonds,  issued  by  the  Masonic  Hall  Association,  pro- 
vided that  stock  is  issued  to  the  Grand  Lodge  by  said  associa- 
tion to  the  amount  of  said  assumption  of  payment  by  this  Grand 
Lodge  as  the  said  bonds  are  paid." 

The  Court  below  instructed  the  jury  that  independently  of 
the  question  of  the  power  of  the  Grand  Lodge  to  pass  the  reso- 
lution, it  was  no  foundation  for  the  present  action,  and  directed 
a  verdict  for  the  defendant. 

The  jury  returned  a  verdict  in  accordance  with  the  direction 
of  the  Court,  and  judgment  having  been  entered  thereon,  the 
plaintiff  sued  out  this  writ  of  error. 

JoJm  C.  Orrick  for  the  plaintiff  in  error. 

Johti  D.  S.  Dryden,  contra. 

Strong,  J.,  delivered  the  opinion  of  the  Court, 

It  is  unnecessary  to  consider  the  several  assignments  of  error 
in  detail,  for  there  is  an  insurmountable  difficulty  in  the  way  of 


8o8  NATIONAL   BANK   V.    GRAND   LODGE.         [cHAP.  III. 

the  plaintiff's  recovery.  The  resolution  of  the  Grand  Lodge 
was  but  a  proposition  made  to  the  Masonic  Hall  Association, 
and,  when  accepted,  the  resolution  and  acceptance  constituted 
at  most  only  an  executory  contract  inter pat-tes.  It  was  a  con- 
tract made  for  the  benefit  of  the  association  and  of  the  Grand 
Lodge — made  that  the  latter  might  acquire  the  ownership  of 
stock  of  the  former,  and  that  the  former  might  obtain  relief 
from  its  liabilities.  The  holders  of  the  bonds  were  not  parties 
to  it,  and  there  was  no  privity  between  them  and  the  lodge. 
They  may  have  had  an  indirect  interest  in  the  performance  of 
the  undertakings  of  the  parties,  as  they  would  have  in  an  agree- 
ment by  which  the  lodge  should  undertake  to  lend  money  to 
the  association,  or  contract  to  buy  its  stock  to  enable  it  to  pay 
its  debts  ;  but  that  is  a  very  different  thing  from  the  privity 
necessary  to  enable  them  to  enforce  the  contract  by  suits  in 
their  own  names.  We  do  not  propose  to  enter  at  large  upon  a 
consideration  of  the  inquiry  how  far  privity  of  contract  between 
a  plaintiff  and  defendant  is  necessary  to  the  maintenance  of  an 
action  of  assumpsit.  The  subject  has  been  much  debated,  and 
the  decisions  are  not  all  reconcilable.  No  doubt  the  general 
rule  is  that  such  a  privity  must  exist.  But  there  are  confessedly 
many  exceptions  to  it.  One  of  them,  and  by  far  the  most  fre- 
quent one,  is  the  case  where,  under  a  contract  between  two 
persons,  assets  have  come  to  the  promisor's  hands  or  uhderTilf 
control  which  in  equity  belong  to  a  third  person.  In  such  3 
case  it  is  held  that  the  third  person  may  sue  in  his  own  name. 
But  then  the  suit  is  founded  rather  on  the  implied  undertaking 
the  law  raises  from  the  possession  of  the  assets,  than  on  the 
express  promise.  Another  exception  is  where  the  plaintiff.,  i? 
the  beneficiary  solely  interested  in  the  promise,  as  where  one 
person  contracts  with  another  to  pay  money  or  deliver  some 
valuable  thing  to  a  third.  But  where  a  debt  already  exist;? 
from  one  person  to  another,  a  promise  by  a  third  person  to  pay 
such  debt  being  primarily  for  the  benefit  of  the  original  debtor, 
and  to  relieve  him  from  liability  to  pay  it  (there  being  no  nova- 
tion), he  has  a  right  of  action  against  the  promisor  for  his  own 
indemnity  ;  and  if  the  original  creditor  can  also  sue,  the  prom- 
isor would  be  liable  to  two  separate  actions,  and  therefore  the 
rule  is  that  the  original  creditor  cannot  sue.  His  case  is  not  an 
exception  from  the  general  rule  that  privity  of  contract  is  re- 
quired. There  are  some  other  exceptions  recognized,  but  they 
are  unimportant  now.  The  plaintiff's  case  is  within  none  of 
them.  Nor  is  he  sole  beneficiary  of  the  contract  between  the 
association  and  the  Grand  Lodge.  The  contract  was  made,  as 
we  have  said,  for  the  benefit  of  the  association,  and  if  enforce- 


SEC.  I.]  DAVIS  V.  THE  CLINTON  WATER  WORKS  CO.  809 

able  at  all,  is  enforceable  by  it.  That  the  several  bondholders 
of  the  association  are  not  in  a  situation  to  sue  upon  it  is  appar- 
ent on  its  face.  Even  as  between  the  association  and  the  Grand 
Lodge,  the  latter  was  not  bound  to  pay  anything  except  so  far 
as  stock  of  the  former  was  delivered  or  tendered  to  it.  The 
promise  to  pay  and  the  promise  to  deliver  the  stock  were  not 
independent  of  each  other.  They  were  concurrent  and  de- 
pendent. Of  this  there  can  be  no  doubt.  The  resolution  of 
the  lodge  was  to  assume  the  payment  of  the  $200,000  bonds, 
issued  by  the  association,  "  Provided,  that  stock  is  issued  to  the 
Grand  Lodge  by  said  association  to  the  amount  of  said  assump- 
tion," .  .  .  "  as  said  bonds  are  paid."  Certainly  the  obliga- 
tion of  the  lodge  was  made  contingent  upon  the  issue  of  the 
stock,  and  the  consideration  for  payment  of  the  debt  to  the 
bondholders  was  the  receipt  of  the  stock.  But  the  bondholders 
can  neither  deliver  it  nor  tender  it  ;  nor  can  they  compel  the 
association  to  deliver  it.  If  they  can  sue  upon  the  contract, 
and  enforce  payment  by  the  Grand  Lodge  of  the  bonds,  the 
contract  is  wholly  changed,  and  the  lodge  is  compelled  to  pay 
whether  it  gets  the  stock  or  not.  To  this  it  cannot  be  presumed 
the  lodge  would  ever  have  agreed.  It  is  manifest,  therefore, 
that  the  bondholders  of  the  association  are  not  in  such  privity 
with  the  lodge,  and  have  no  such  interest  in  the  contract  as  to 
warrant  their  bringing  suit  in  their  own  names. 

Hence  the  present  action  cannot  be  sustained,  and  the  Circuit 
Court  correctly  directed  a  verdict  for  the  defendant. 

Judgment  affirmed. 


DAVIS  V.  THE   CLINTON  WATER  WORKS  COMPANY. 

In  the  Supreme  Court  of  Iowa,  June  15,  1880. 

[Reported  in  54  loma  59.] 

Action  at  law  to  recover  the  value  of  certain  buildings  de- 
stroyed by  fire,  upon  the  ground  that  defendant  was  bound 
by  contract  with  the  city  of  Clinton  to  supply  water  to  be  used 
in  extinguishing  fires  and  failed  to  perform  its  obligation  in 
this  respect,  which  resulted  in  the  destruction  of  plaintiff's 
property.  A  demurrer  to  the  petition  was  overruled,  and  de- 
fendant appeals  from  the  decision  upon  the  demurrer. 

E.  S.  Bailey  and  Wright,  Gatch  6^  Wright  for  appellant. 

J.  S.  Darling  and  A.  R.  Cotton  for  appellee. 

Beck,  J.  I.  The  petition  alleges  that  the  defendant  entered 
into  a  contract  with  the  city  of  Clinton  to  supply  water  to  be 


8lO  DAVIS  V.  THE  CLINTON  WATER  WORKS  CO.    [CHAP.  III. 

used  by  ihe  city  for  the  purpose  of  extinguishing  fires.  The 
contract  is  embodied  in  an  ordinance  passed  by  the  city  author- 
izing defendant  to  establish  its  works  for  supplying  water  to 
the  citv,  and  providing  for  compensation  to  be  paid  defendant 
by  the' city  for  water  furnished  for  public  purposes,  including 
the  extino-uishing  of  fires.  The  terms  and  conditions  of  this 
contract  need  not  be  recited.  It  is  sufficient  to  state  that  the 
parties  thereto  were  the  city  and  the  defendant,  and  the  plain- 
tiff in  this  case  in  no  sense  was  a  party  to  the  contract.  The 
power  of  the  city  to  pass  the  ordinance  and  enter  into  the  con- 
tract is  not  questioned. 

The  petition  alleges  that  a  fire  occurred  in  certain  store-rooms 
owned  by  plaintiff  in  the  city,  and  they  were  entirely  con- 
sumed for  the  reason  that  the  necessary  supply  of  water  was  not 
furnished  by  defendant,  and  a  sufficient  pressure  of  water  was 
not  found  at  the  hydrants  contiguous  to  the  buildings,  which 
was  caused  by  defective  machinery  and  the  negligence  of  de- 
fendant's servants,  all  of  which  was  in  violation  of  defendant's 
contracts  under  said  ordinance  of  the  city.  A  demurrer  to  the 
petition  was  overruled. 

II.  The  only  question  presented  in  the  case  is  this  one.  Is  the 
defendant  liable  to  plaintiff  upon  the  contract  embodied  in  the 
ordinance  ? 

The  petition  does  not  allege  or  show  any  privity  of  contract 
between  plaintiff  and  defendant.  The  plaintiff  is  a  stranger, 
and  the  mere  fact  that  she  may  find  benefits  therefrom  by  the 
protection  of  her  property,  in  common  with  all  other  persons 
whose  property  is  similarly  situated,  does  not  make  her  a  party 
to  the  contract,  or  create  a  privity  between  her  and  defendant. 

I  It  is  a  rule  of  law,  familiar  to  the  profession,  that  a  privity^ 
contract  must  exist  between  the  parties  to  an  action  upon_a, 
contract.  One  whom  the  law  regards  as  a  stranger  to  the  con- 
tract cannot  maintain  an  action  thereon.  The  rule  is  founded 
upon  the  plainest  reasons.  The  contracting  parties  control  all 
interests,  and  are  entitled  to  all  rights  secured  by  the  contract. 
If  mere  strangers  may  enforce  the  contract  by  actions,  on  the 
ground  of  benefits  flowing  therefrom  to  them,  there  would  be 
no  certain  limit  to  the  number  and  character  of  actions  which 
would  be  brought  thereon.  Exceptions  to  this  rule  exist,  which 
must  not  be  regarded  as  abrogating  the  rule  itself.     Thus,  if 

/  one  undej-  a  contract  receives  goods  or  property  to  which  an- 
other, not  a  party  to  the  contract,  is  entitled,  hemay  maintain 
an  action  therefor.  So  the  sole  beneficiary  of  a  contract  may 
maintain  an  action  to  recover  property  or  money  to  which  he  is 

'  ^"l^^l?.!  thereunder.     In  these  cases  the   law  implies  a  promise 


SEC.  I.]  DAVIS  V.  THE  CLINTON  WATER  WORKS  CO.  8ll  ' 

on  the  part  of  the  one  holding  the  money  or  property  to  account 
therefor  to  the  beneficiary.  Other  exceptions  to  the  rule,  rest- 
ing upon  similar  principles,  may  exist.  See  National  Bank  v. 
Grand  Lodge,  98  U.  S.  123. 

The  case  before  us  is  not  an  exception  to  the  rule  we  have 
stated.  The  city,  in  exercise  of  its  lawful  authority,  to  protect 
the  property  of  the  people,  may  cause  water  to  be  supplied  for 
extinguishing  fires  and  for  other  objects  demanded  by  the 
wants  of  the  people.  In  the  exercise  of  this  authority  it  con- 
tracts with  defendant  to  supply  the  water  demanded  for  these 
purposes.  The  plaintiff  received  benefits  from  the  water  thus 
supplied  in  common  with  all  the  people  of  the  city.  These 
benefits  she  receives  just  as  she  does  other  benefits  from  the 
municipal,  government,  as  the  benefits  enjoyed  on  account  of 
improved  streets,  peace^  and  order  enforced  by  police  regula- 
tion and  the  like. 

It  cannot  be  claimed  that  the  agents  or  officers  of  the  city 
employed  by  the  municipal  government  to  supply  water,  im- 
prove the  streets,  or  maintain  good  order,  are  liable  to  a  citizen 
for  loss  or  damage  sustained  by  reason  of  the  failure  to  perform 
their  duties  and  obligations  in  this  respect.  They  are  employed 
by  the  city,  and  responsible  alone  to  the  city.  The  people  must 
trust  to  the  municipal  government  to  enforce  the  discharge  of 
duties  and  obligations  by  the  officers  and  agents  of  that  govern- 
ment. They  cannot  hold  such  officers  and  agents  liable  upon 
the  contracts  between  them  and  the  city. 

These  views  and  conclusions  are  supported  by  the  following 
authorities  :  Atkenson  v.  New  Castle  &  Gateshead  Waterworks 
Co.,  L.  R.,  2  Exch.  Div.  441  ;  Nickerson^'.  Bridgeport  Hydraulic 
Co.  (January,  1878),  46  Conn.  24  ;  Vrooman  v.  Turner,  69  N.  Y. 
280  ;  Wharton  on  Negligence,  §§  438,  439,  440  ;  Shearman  & 
Redfield  on  Negligence,  §  54. 

The  cases  cited  by  counsel  for  plaintiff,  we  think,  are  not  in 
conflict  with  the  view  we  have  above  expressed. 
.  III.  Counsel  for  defendant  base  an  argument  upon  the  posi- 
tion that  the  city  itself  would  not  be  liable  to  defendant  in  case 
it  owned  and  operated  the  water  works.  They  argue  that  the 
defendant,  therefore,  would  not  be  liable  to  plaintiff.  We  find  it 
unnecessary  to  consider  the  argument  or  the  premise  upon  which 
it  is  based.  We  are  content  to  rest  our  conclusion  upon  the 
grounds  and  arguments  we  have  attempted  to  present. 

The  Circuit  Court  erred  in  overruling  the  demurrer  to  plain- 
tiff's petition.     Its  judgment  is,  therefore,  reversed. 


8l2  LITTLE   Ct   al.    V.    BANKS.  [CHAP.  III. 


WEARE  C.  LITTLE  et  al.,  Respondents,  v.  A.  BLEECKER 
BANKS,  Appellant. 

In  the  Court  of  Appeals  of  New  York,  May  3,  1881. 
\Reported  in  85  New  York  Reports  258.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  third  judicial  department,  entered  upon  an  order 
made  February  13th,  1880,  affirming  a  judgment  in  favor  of 
plaintifif,  entered  upon  a  decision  of  the  Court  on  trial  without 
a  jury.     (Reported  below,  20  Hun,  143.) 

The  nature  of  the  action  and  the  facts  are  sufificiently  stated 
in  the  opinion. 

Rufics  IV.  Peckham  for  appellant. 

E.  Countryman  for  respondents. 

Miller,  J.  This  action  was  brought  to  recover  damages  sus- 
tained by  the  plaintiffs,  as  law-book-sellers,  for  an  alleged  re- 
fusal of  the  defendant  to  sell  and  deliver  to  them  certain  copies 
of  the  volumes  of  the  New  York  Reports  published  by  the  de- 
fendant. The  contract  of  the  defendant  with  the  State  officers 
who  were  authorized  to  make  the  same  provided,  among  other 
things,  that  the  defendant  should  at  all  times  keep  the  volumes 
published  for  sale  at  retail,  at  the  price  named,  in  one  or  more 
law-book-stores  in  the  city  of  Albany  and  the  city  of  New  York, 
and  it  declared  :  "  And  should  any  other  law-book-seller  in 
either  of  said  cities  apply  to  purchase  any  of  said  volumes,  the 
same  shall  be  supplied  to  such  law-book-seller  upon  application, 
in  quantities  not  exceeding  one  hundred  copies  to  each  appli- 
cant, unless  said  party  of  the  second  part  shall  choose  to  deliver 
a  greater  number  when  applied  for,  which  he  shall  be  at  liberty 
to  do,  and  the  said  party  of  the  second  part  shall  thereupon,  at 
intervals  not  exceeding  ten  days,  furnish  the  said  law-book- 
sellers copies  of  any  of  said  volumes  when  required,  in  quanti- 
ties not  exceeding  fifty  volumes  at  a  time."  It  also  provided 
that  "  the  said  volumes  shall  be  published  and  kept  for  sale  as 
aforesaid,  at  the  price  of  $1.10  per  copy,  and  shall  be  simultane- 
ously placed  on  sale  in  each  of  said  book-stores  in  the  cities  of 
New  York  and  Albany,  and  as  to  the  time  when  copies  of  said 
volumes,  or  any  of  them,  may  be  purchased,  there  shall  be  no 
discrimination  in  favor  of  or  against  any  person  desiring  to 
purchase  the  same,  but  they  shall  be  supplied  to  all  alike  in 
the  manner  hereinabove  provided."     The  contract   further  de- 


SEC.  I.]  LITTLE   Ct  al.   V.    BANKS.  813 

clared  that  the  State  officers  should  be  at  liberty  to  abrogate 
and  annul  the  same  for  any  default  or  failure  to  fulfil,  and  for 
a  breach  of  any  of  its  terms  or  conditions  the  defendant  should 
forfeit  and  pay  to  the  people  of  the  State  the  sum  of  $5000, 
which  was  "  agreed  upon,  not  as  a  penalty,  but  as  fixed,  stipu- 
lated, and  liquidated  damages  suffered  by  the  people  aforesaid, 
to  be  sued  for  and  recovered  by  the  attorney-general  ...  in 
the  name  and  for  the  benefit  of  the  said  people."  It  was  also 
further  agreed  that  for  any  failure  on  the  part  of  the  defendant 
"  to  keep  on  sale,  furnish  and  deliver  the  aforesaid  volumes,  or 
any  of  them,  at  the  price  and  as  hereinabove  provided,"  the 
defendant  "  shall  forfeit  and  pay  .  .  .  the  sum  of  $100,  hereby 
fixed  and  agreed  upon,  not  as  a  penalty  but  as  the  liquidated 
damages  suffered  by  the  person  or  persons  aggrieved  thereby, 
the  same  to  be  sued  for  and  recovered  by  the  person  or  persons 
so  aggrieved."  The  plaintiffs  applied  on  six  different  occasions 
for  copies  of  some  of  the  volumes  published  at  the  book-store 
of  the  defendant,  and  demanded  the  same,  and  the  defendant 
refused  to  furnish  the  same,  and  the  plaintiffs  bring  this  action 
for  six  different  sums  of  $100  each  by  reason  of  such  refusals. 

The  effect  of  the  contract  was  that,  in  consideration  of  doing 
the  work,  the  defendant  would  sell  and  deliver  the  books,  as 
provided,  to  the  persons  who  were  entitled  thereto,  and  if  he 
failed  to  do  so  as  required,  when  demanded,  he  would  pay,  to 
the  person  injured,  the  damages.  The  rule  is  well  settled  by 
the  decisions  of  the  courts  of  this  State,  that  an  agreement 
made  for  ajvalid  consideration  by  one  party  with  another  to 
pay  money  to  a  third  can  be  enforced  by  such  third  person  in 
his  ownjiame.  Lawrence  v.  Fox,  20  N.  Y.  268  ;  Coster  v.  The 
Mayor,  43  N.  Y.  399  ;  52  Barb.  276  ;  French  v.  Donaldson, 
57  N.  Y.  496  ;  5  Lans.  293.  Contractors  with  the  State,  who 
assume,  for  a  consideration  received  from  the  sovereign  power, 
by  covenant,  express  or  implied,  to  do  certain  things,  are  liable, 
in  case  of  neglect  to  perform  such  covenant,  to  a  private  action 
at  the  suit  of  the  party  injured  by  such  neglect,  and  such  con- 
tract inures  to  the  benefit  of  the  individual  who  is  interested  in 
its  performance.  Weet  v.  Vil.  of  Brockport,  16  N.  Y.  161, 
note  ;  Robinson  v.  Chamberlain,  34  N.  Y.  389  ;  Fulton  Fire  Ins. 
Co.  V.  Baldwin,  37  N.  Y.  648  ;  Johnson  v.  Belden,  47  N.  Y. 
130  ;  City  of  Brooklyn  v.  Brooklyn  City  R.  R.  Co.,  47  N.Y.  476  ; 
McMahon  v.  Second  Ave.  R.  R.  Co.,  75  N.  Y.  231  ;  Conroy  v. 
Gale,  5  Lans.  344.  The  ground  upon  which  these  decisions  are 
founded  is  a  broad  principle  of  public  policy  essential  to  the 
public  welfare  (34  N.  Y.,  supra),  and  we  are  unable  to  perceive 
why  the   doctrine  last  stated,   witliout  invoking  the   rule   laid 


3 14  TODD   z\    WEBER   c't  a/.  [CHAP.  III. 

down  in  Lawrence  v.  Fox  [supra),  is  not  applicable  to  a  contract 
of  the  description  of  the  one  in  controversy,  where  the  officers 
enter  into  it  for  the  advantage  and  the  welfare  of  the  public, 
and  where  such  a  provision  constitutes  a  material  portion  of  the 
agreement  which  is  essential  to  carry  it  into  effect.  Within 
some  of  the  adjudications  in  this  State  already  cited,  if  the 
plaintiffs  have  been  injured  b}'  a  violation  of  such  a  contract, 
no  reason  exists  why  an  action  would  not  lie  on  their  behalf 
against  the  disiendant  for  the  recovery  of  damages.  See  also 
Arnold  v.  Nichols,  64  N.  Y.    117  ;  Claflin  v.   Ostrom,  54  N.  Y. 

581: 

We  have  given  due  consideration  to  the  criticism  of  the 
learned  counsel  for  the  appellant  upon  the  decisions  referred 
to,  but  we  are  unable  to  discover  any  such  distinction  between 
some  of  the  cases  cited  and  the  one  at  bar,  as  would  authorize 
a  holding  that  the  State  officers  had  no  authority  to  make  a 
contract  for  the  benefit  of  the  plaintiffs,  and  others  who  desired 
to  purchase  the  reports,  which  would  authorize  an  action  to 
recover  damages  in  favor  of  a  paity  injured  by  a  failure  to  per- 
form. The  plaintiffs  certainly  had  a  special  interest  in  the  con- 
tract, which  was  provided  for,  and  it  is  difficult  to  see  why  they 
had  not  the  same  remedy  as  in  the  cases  cited,  where  provision 
has  been  made  for  the  benefit  of  a  third  person  which  entitled 
such  person  to  maintain  an  action  for  a  breach  of  the  contract. 

The  judgment  was  right,  and  should  be  affirmed. 

All  concur  except  Rapallo,  J.,  absent,  and  Andrews,  J.,  not 
voting. 

Judgment  affirmed. 


JOSEPHINE     TODD,    Respondent,    v.    ALBERT    WEBER 

ET  AL.,   Executors,  etc..  Appellants. 

In  the  -Court  of  Appeals  of  New  York,  February  26,  1884. 
[Reported  m  95  N'ew  York  Reports  181.J 

Appeal  from  order  of  the  General  Term  of  the  Supreme 
Court,  in  the  first  judicial  department,  made  March  226.,  1883, 
which  reversed  a  judgment  in  favor  of  defendants,  entered  upon 
the  report  of  a  referee. 

The  nature,  of  the  action  and  the  material  facts  are  stated  in 
the  opinion. 

Robert  S.  Green  for  appellants. 

William  H.  Arnoux  for  respondent. 


SEC.  I.]  TODD   V.   WEBER  ct  al.  815 

Danforth,  J.  The  complaint  is  twofold  :  First,  that  the 
defendant's  testator,  the  father  of  the  plaintiff,  although  not 
the  husband  of  her  mother,  being  applied  to  by  Margaret  Voris, 
Francis  A,  Knapp,  Hester  A.  Knapp,  and  Louisa  A.  Story  to 
.provide  for  the  plaintiff,  promised  them  that  he  would  pay  for 
her  maintenance,  support,  and  education,  by  making  due  and 
sufficient  provision  for  her  by  his  last  will,  in  consideration  that 
they  would  support  her  during  the  term  of  his  natural  life  ; 
avers  that  these  persons  were  relatives  of  the  plaintiff's  mother, 
and  that  upon  this  promise  they  maintained,  cared  for,  educated 
and  supported  the  plaintiff  up  to  June  25th,  1879,  when  the 
testator  died. 

Second,  a  promise  by  the  testator  to  the  plaintiff,  and  other 
persons  acting  in  her  behalf,  that  he  would  support  and  main- 
tain her  so  long  as  she  should  live. 

The  testator  made  no  provision  for  the  plaintiff  by  will  or 
otherwise. 

These  promises  were  denied  by  the  defendants,  and  the  ref- 
eree, to  whom  the  issues  were  referred,  found  against  the 
plaintiff,  because  in  his  opinion  no  legal  claim  had  been  estab- 
lished, lamenting  at  the  same  time  "  that  the  simplicity  and 
ingenuousness  of  the  plaintiff  and  her  witnesses" — the  persons 
above  referred  to — "  had  been  practised  upon."  On  appeal  to 
the  General  Term  that  Court  held  that  the  plaintiff  might  re- 
cover upon  the  first  cause  of  action,  but  as  to  the  second,  that 
no  case  was  made  out  ;  reversed  the  judgment  which  had  fol- 
lowed the  report  of  the  referee  and  ordered  a  new  trial.  From 
that  order  the  defendants  appealed  to  this  Court,  assenting 
that  if  the  order  should  be  affirmed,  judgment  absolute  should 
be  rendered  against  them.     (Code,  §  191.) 

If  I  am   right  in  these  conclusions   there  is   before  us  a  validj 
contract  made  between   the  testator  and   the  several   persons 
named   for  the  benefit  of   the   plaintiff.      The  only  remaining 
question  is  one  of  parties — who  should  bring   the  action  for  its 
enforcement.'     A^^e  had  the   sole  beneficial   interest  in  thel 
contract,    it   was,   we   think,    properly    brought    in    her   name.' 
This  would  seem  plain  enough  upon  principle,  but  it  is  also 
well-established  by  authority.     In  Button  and  Wife  v.  Poole, 
2  Levinzs,  210,  decided  in  the  time  of   Charles  II.,  a  son  prom- 
ised his  father,  upon  a  consideration   moving  from  him,  to  pay 
his  daughter  ;^iooo.     Upon  default  the  daughter  sued.     After 
verdict  for  the  plaintiff  it  was  argued  in  arrest  of  judgment  that 
the  action  should  have  been  by  the  father,  not  the  daughter, 
for  the  promise,  it  was  said,  was  made  to  the  father,  and  the 
•  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


h 


8l6  TODD   V.    WEBER   ef  al.  [chap.  III. 

daughter  was  neither  privy  nor  interested  in  the  consideration, 
nothing  being  due  to  her.  The  Court  seemed  to  hesitate,  but 
after  more  than  one  hearing  and  citation  by  counsel  of  cases 
pro  and  con^  it  was  held  in  favor  of  the  plaintiff,  the  Chief 
Justice  saying  that  there  was  such  apparent  consideration  of 
affection  from  the  father  to  his  children,  for  whom  nature 
obliges  him  to  provide,  that  the  consideration  and  promise  to 
the  father  may  well  extend  to  the  children,  and  the  judgment 
then  given  was,  on  error  brought,  affirmed  in  the  Exchequer 
Chamber. 

A  century  later  Lord  Mansfield,  in  Martin  v.  Hind,  Cowper 
437-443,  referring  to  Dutton  v.  Poole  {supra),  said  :  "  It  was 
matter  of  surprise  how  a  doubt  could  have  arisen  in  that  case." 
A  few  years  after  (1806)  a  similar  question  came  before  the 
Supreme  Court  of  this  State,  in  Schermerhorn  v.  Vanderhey- 
den,  I  Johns.  139,  where  the  facts  were  that  in  consideration  of  one 
J.  C,  the  father  of  the  plaintiff's  wife,  assigning  to  the  defend- 
ant certain  personal  property,  the  latter  promised  to  purchase 
for  the  daughter  a  cherry  desk.  He  failed  to  do  so,  and  for 
that  breach  the  action  was  brought  by  the  husband  of  the 
daughter,  he  suing  in  her  right.  It  was  objected  that  no  action 
could  be  maintained  by  the  plaintiff  on  the  promise  made  to 
J,  C;  but  the  Court  held  otherwise,  saying  :  "  Where  one  per- 
son makes  a  promise  to  another  for  the  benefit  of  a  third  person, 
that  third  person  may  maintain  an  action  on  such  promise," 
citing  Dutton  v.  Poole  [supra],  and  saying  the  same  principle 
has  since  that  time  been  repeatedly  sanctioned  by  the  decisions 
of  the  English  courts. 
^  _,..\  A  different  rule  is  said  to  prevail  in  those  tribunals  at  the 
present  time  (per  Wightman,  J.,  in  Tweddle  v.  Atkinson, 
I  Best  &  Smith,  Q.  B.  393  ;  loi  Eng.  Com.  Law  R.  393),  and 
there  even  in  equity  the  doctrine  of  the  earlier  cases  may  be 
considered  as  unsettled.  Pollock's  Principles  of  Contract,  196. 
But  in  this  State  it  has,  I  believe,  been  uniformly  adhered  to. 
In  1817  it  seems  to  have  been  approved  by  Kent,  C.  Cumber- 
land V.  Codrington,  3  Johns,  ch.  254.  The  question  came 
directly  before  him  in  1823,  and  it  was  answered  in  the  same 
way  upon  the  principle  asserted  in  Dutton  v.  Poole  [supra),  and 
the  learned  chancellor  held  that  where  a  father  conveyed  land 
to  his  son  on  his  covenanting  to  pay  an  annuity  to  his  mother 
during  her  widowhood,  she  might  maintain  an  action  on  the 
covenant  so  made  for  her  benefit  (Shepard  v.  Shepard,  7  J.  Ch. 
56),  and  in  1845  his  successor  says  it  has  been  the  settled  law 
from  the  time  of  the  decision  of  the  case  of  Dutton  v.  Poole 
[supra),  down  to  the  then  present  time,  that  a  party  for  whose 


SEC.  I.]  TODD   V.   WEBER   cf  al.  817 

benefit  a  promise  is  made  may  sue  in  assumpsit  upon  such  prom- 
isCj^  although  the  consideration  for  such  promise  was  a  consid- 
eration between  the  promisor  and  a  third  person. 

Such  also  was  the  conclusion  of  the  late  Supreme  Court  of 
this  State  after  a  full  examination  of  the  authorities  in  Barker  z'. 
Bucklin,  2  Denio,  45.  Also  by  the  present  Supreme  Court  in 
1859  in  Judson  v.  Gray,  affirmed  by  this  Court  (17  How.  Pr. 
289).  In  Burr  v.  Beers,  24  N.  Y.  178,  the  judgment  was  in 
terms  supported  upon  as  was  said,  "  the  broad  principle  that  if 
one  person  make  a  promise  to  another  for  the  benefit  of  a  third 
person,  that  third  person  may  maintain  an  action  on  the  prom- 
ise," and  Denio,  J.,  after  a  review,  of  the  authorities,  said  : 
"  We  must  regard  the  point  as  definitely  settled  so  far  as  the 
courts  of  this  State  are  concerned."  It  seems  unnecessary  to 
follow  the  line  of  authorities  further.  The  plaintiff  is  within 
the  rule.  The  contract  upon  which  she  sues  was  made  for  her 
benefit  as  its  object.  It  is  the  doctrine  of  the  first  and  last  case 
that  she  may  enforce  it.  This  conclusion  is  also  in  harmony 
with  the  general  current  of  authority.  In  the  Supreme  Court 
of  the  United  States  Hendrick  v.  Lindsay,  93  U.  S.  Rep.  (^3  Otto) 
143,  it  is  said  :  "  The  right  of  a  party  to  maintain  assumpsit  on 
a  promise  not  under  seal,  made  to  another  for  his  benefit, 
although  much  controverted,  is  now  the  prevailing  rule  in  this 
country."  This  conclusion  makes  it  unnecessary  to  consider 
the  ground  on  which  the  Court  below  held  that  a  partial  recov- 
ery could  be  had  in  this  case. 

It  may  be  conceded  that  if  the  plaintiff  had  not  outlived  the 
testator,  no  action  at  all  would  lie,  for  that  she  should,  of  the 
two,  be  the  longest  liver  was  one  of  the  conditions  upon  which 
his  promise  was  made.  He  died  first.  The  condition  then 
was  fulfilled.  The  plaintiff  is,  therefore,  entitled  to  recover  of 
the  defendants  the  amount  found  by  the  referee  to  have  been 
paid,  laid  out  and  expended  for  her  by  her  relatives,  as  above 
stated,  together  with  interest  from  the  death  of  the  testator. 

The  order  of  the  General  Term  should,  therefore,  be  affirmed, 
and  judgment  absolute  ordered  for  the  plaintiff  with  costs. 

All  concur  except  Andrews,  J.,  who  dissents. 

Order  affirmed  and  judgment  accordingly. 


gjg  BAY   V.    WILLIAMS.  [cHAP.  III. 

GEORGE   P.  BAY  v.  SIMEON    B.  WILLIAMS. 

In  the  Supreme  Court  of  Illinois,  November  17,  1884. 

[Reported  in  112  Illinois  Reports  91.] 

Appeal  from  the  Appellate  Court  for  the  First  District,  heard 
in  that  Court  on  appeal  from  the  Circuit  Court  of  Cook  County, 
the  Hon.  George  Gardner,  J.,  presiding. 

John  Woodbridge  for  the  appellant. 

Dent,  Black  &'  Cratty  Bros,  for  the  appellee. 

Walker,  J.,  delivered  the  opinion  of  the  Court  : 

It  appears  from  the  record  in  this  case  that  Mrs.  Camelia  J. 
Williams,  on  March  nth,  1873,  sold  to  Newman  &  Sissons  forty- 
acres  of  land  lying  several  miles  south  of  the  city  of  Chicago 
for  the  sum  of  $12,000,  and  after  deducting  the  advanced  pay- 
ment, took  their  promissory  notes  payable  in  instalments.  To 
secure  the  deferred  payments  they  executed  to  Thomas  Dent  a 
trust  deed  on  the  property,  containing  the  usual  powers  con- 
ferred by  such  instruments.  Appellant,  on  September  8th  of 
the  same  year,  purchased  the  land  of  Newman  &  Sissons  for 
the  consideration  named  in  tTieir  warranty  deed,  of  $24,000. 
Their  deed  contained  an  express  promise  on  the  part  of  appel- 
lant to  pay  and  discharge  the  debt  secured  by  the  trust  deed  on 
the  land  in  favor  of  Mrs.  Williams.  The  provision  is  in  this 
language:  "Which  said  notes  for  principal  and  interest  said 
party  (George  P.  Bay)  expressly  agrees  to  pay."  Appellant 
afterward,  on  October  7th,  1878,  applied  to  Sissons,  and  he, 
for  the  expressed  consideration  of  $1  and  other  sufficient  con- 
siderations, released  appellant  from  this  obligation.  Appellant 
also  applied  to  Newman,  who  had  asked  to  be  discharged  from 
his  debts  in  bankruptcy,  for  a  similar  release,  but  he  declined 
to  give  it.  Newman  subsequently  obtained  his  discharge  in 
bankruptcy.  Mrs.  Williams,  on  November  5th,  1879,  filed  this 
bill  to  foreclose  her  mortgage,  and  on  a  hearing,  on  May  27th, 
1881,  she  recovered  a  decree  of  foreclosure.  The  master  sold 
the  land,  and  it  was  bid  off  by  her  at  $12,525,  which  left  $3559.46 
unpaid  on  the  decree.  Afterward,  on  September  12th,  1883, 
the  Court  found  that  appellant  had  assumed  to  pay  the  debt 
secured  by  the  trust  deed,  and  thereby  became  personally  liable 
for  the  deficiency,  and  decreed  that  an  execution  issue  for  the 
unpaid  balance  of  the  decree.  He  appealed  to  the  Appellate 
Court  for  the  First  District,  where,  on  a  hearing,  the  decree  o^ 


SKC.  I.]  BAY   V.    WILLIAMS.  819 

the  lower  Court  was  affirmed,  and  the  case  comes  to  this  Court 
by  another  appeal. 

The  question  presented  for  determination  is  whetlier  the  Court 
below  erred  in  rendering  this  supplemental  decree  awarding 
execution  against  appellant. 

It  is  next  urged  that  admitting  the  doctrine  to  be  correct, 
appellant  was  absolved  from  all  liability  by  Sissons'  release, 
and  cases  are  cited  to  the  effect  that  the  mortgagor  may  release 
his  grantee  from  his  promise  to  pay  the  debt  of  the  mortgagee 
at  any  time  before  such  mortgagee  brings  suit  to  enforce  the 
promise.'  The  cases  referred  to  proceed  upon  the  grounds  that 
the  promise  of  the  grantee  is  made  to  his  grantor,  and  not  to 
the  mortgagee,  and  that  the  latter  has  no  interest  in  the  prom- 
ise until  he  assents  to  and  relies  upon  the  promise,  and  such 
acceptance  is  manifested  by  bringing  suit  to  enforce  the  prom- 
ise ;  or  the}'  proceed,  in  other  cases,  upon  the  theory  that  by 
relying  on  or  accepting  the  promise  of  the  grantee  to  the  mort- 
gagor, the  mortgagee  releases  the  mortgagor,  and  accepts  his 
grantee  as  his  debtor  ;  and  there  is  still  another  theory,  and 
that  is,  that  the  promise  b}''  the  grantee  is  in  the  nature  of  an 
indemnity  to  the  mortgagor,  and  under  either  of  these  theories 
the  mortgagor  may  surrender  or  release  the  indemnity,  or  re- 
lease the  grantee  from  his  promise  before  it  is  accepted,  or 
before  the  mortgagor  is  released  from  the  debt  by  the  mort- 
gagee. This  Court  has  never  recognized  either  of  these  theories 
as  the  law.  It  has  ever  been  held  by  this  Court  that  such  a 
promise  inures  to  the  benefit  of  the  person  for  whose  benefit  it 
is  made,  and  the  right  to  sue  is  vested  in  him  by  force  of  the 
agreement  itself.  It  has  never  been  held  by  this  Court  that  the 
express  assent  of  the  beneficiary  is  essential  to  his  right  to  avail 
of  its  benefits  ;  nor  has  it  been  held,  to  have  force  as  an  agree- 
ment to  the  person  in  whose  favor  it  was  made  he  must  dis- 
charge his  debtor,  and  accept  the  maker  of  the  new  promise  as 
his  debtor.  On  the  contrary,  it  was  held  in  Dean  v.  Walker, 
supra,  that  the  mortgagee  might  sue  either  the  mortgagor  or 
his  grantee  assuming  to  pay  the  debt.  Nor  has  it  been  held 
that  the  promise  of  the  grantee  to  the  mortgagor  is  a  mere 
indemnity  of  the  latter  against  the  payment  of  the  mortgage. 
On  the  contrary,  this  Court  has  uniformly  held  that  the  bene- 
ficiary may  sue  at  law,  which  repudiates  the  doctrine  of  indem- 
nity, as  the  person  for  whose  benefit  the  promise  is  made  can 
never  reach  an  indemnity  or  security  given  to  his  debtor  but  in 
chancery,  and  then  only  when  his  debtor  is  insolvent,  or  on 
some  other  equitable  grounds.     The  principle  upon  which  this 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Eb. 


820  BAY    V.    WILLIAMS.  [cHAP.  III. 

Court  has  acted  is  that  such  a  promise  invests  the  person  for 
whose  use  it  is  made  with  an  immediate  interest  and  right,  as 
though  the  promise  had  been  made  to  him.  This  being  true, 
the  person  who  procures  the  promise  has  no  legal  right  to  re- 
lease or  discharge  the  person  who  made  the  promise,  from  his 
liability  to  the  beneficiary.  Having  the  right,  it  is  under  the 
sole  control  of  the  person  for  whose  benefit  it  is  made — as 
much  so  as  if  made  directly  to  him. 

It  is  urged  there  was  not  a  sufficient  consideration  to  support 
the  promise  of  appellant  to  pay  the  debt  owing  to  Mrs.  Wil- 
liams. That  is  a  misconception.  He  received  the  equity  of 
redemption  of  the  land,  which  he  supposed  was  worth  all  that 
he  promised  to  pay,  and  that  was  sufficient  to  support  the 
promise.  Nor  does  it  matter  whether  it  was  received  from  his 
grantors  or  Mrs.  Williams.  Whether  from  the  one  or  the  other 
it  was  equally  binding.     There  is  no  force  in  this  objection. 

Perceiving  no  error  in  the  record,  the  decree  of  the  Appellate 
Court  is  affirmed. 

Decree  affirmed, 

ScHOLFiELD,  J.,  dissenting  : 

I  cannot  concur  in  this  opinion.  The  precise  question  has 
never  been  presented  to  this  Court  before.  The  release  of  Sis- 
sons  was  executed  before  any  acceptance  by  Mrs.,  Williams  of 
the  assumption  by  Bay  of  the  payment  of  the  debt  of  Newman  & 
Sissons,  She  might  have  accepted  their  assumption,  but  it  was 
optional  to  do  so  or  not.  She  was  under  no  obligation  to  do 
so.  Notwithstanding  the  sale  of  the  land  to  Bay,  she  had,  apart 
from  his  assumption,  all  the  security  she  had  ever  had  for  the 
payment  of  her  debt' — namely,  the  individual  note  of  Newman  & 
Sissons,  secured  by  trust  deed  on  the  land,  in  the  purchase  of 
which  the  indebtedness  was  incurred.  Bay  owed  Mrs.  Williams 
no  duty  in  regard  to  this  liability,  further  than  he  might  volun- 
tarily assume  to  protect  his  purchase,  and  Newman  &  Sissons 
were  under  no  obligation  to  furnish  her  any  additional  security. 
It  was  purely  voluntary,  therefore,  upon  the  part  of  Newman  & 
Sissons,  and  Bay,  whether  Bay,  in  purchasing  the  land,  should 
assume  the  payment  of  the  debt  of  Newman  &  Sissons  to  Mrs. 
Williams,  and  purely  voluntary  upon  her  part  whether  she 
should  accept  it  or  not  ;  and  so  it  is  impossible  that  she  could 
have  had  a  vested  interest  in  the  assumption  before  she  had 
done  some  act  upon  the  faith  of  it,  making  herself  thereby  ir- 
revocably a  party  to  it.  Having  no  vested  interest  in  the  assump- 
tion, it  must  necessarily  follow  that  the  release  put  an  end  to  it, 
so  that  she  could  not  afterward  elect  to  accept  it.  The  assump- 
tion clause  having  been  executed   voluntarily,  and  without  any 


SEC.  I.]  WHEAT  ct  al.   v.    RICE  ct  al.  821 

legal  claim  on  her  part  to  have  it  executed,  it  was  in  the  nature 
of  a  mere  offer,  until  acted  upon,  which  might  be  withdrawn  at 
pleasure,  and  the  execution  of  the  release  was,  in  effect,  its 
withdrawal.  The  authorities,  so  far  as  I  have  examined,  all 
accord  in  this  view.  Durham  v.  Bischof  et  al.,  47  Ind.  211  ; 
Davis  V.  Calloway,  30  Ind.  112  ;  Carnahan  v.  Toucey,  93  Ind. 
564  ;  Moore  v.  Ryder,  65  N.  Y.  442  ;  Stephens  v.  Cassbacker, 
8  tlun,  116  ;  Crowell  v.  Currier,  27  N.  J.  Eq.  152  ;  Butterfield  v. 
Hadstrom,  7  N.  H.  345. 

Dickey,  J.  I  concur  in  the  views  here  expressed  by  the  Chief 
Justice.  If  A.,  owing  B.  a  given  sum,  for  a  valuable  considera- 
tion takes  a  written  promise  made  by  C.  to  A.  (and  to  which 
promise  B.  is  not  a  party),  that  C  will  pay  to  B.  the  amount 
due  to  B.  by  A.,  this  is  simply  a  contract  between  A.  and  C, 
in  which  B.,  strictly  speaking,  has  no  rights.  By  the  ancient 
rules  B.  could  not  avail  himself  of  this  promise,  except  by  a  suit 
in  the  name  of  A.  against  C.  Afterward  the  form  of  proceed- 
ing was  so  modified  that  B.  was,  and  now  is,  permitted  to  sue  in 
his  own  name  instead  of  in  the  name  of  A.  for  his  use.  When 
A.  thus  exacts  a  promise  from  C.  to  pay  A.'s  debt  to  C,  it 
affects  B.  only  in  so  far  as  the  same  may  be  regarded  as  an  offer 
by  A.  to  B.  to  give  B.  additional  security.  Until  something 
occurs  which  may  be  construed  as  an  executed  gift  A.  may 
withdraw  the  offer. 

Sheldon,  J.,  concurs  in  the  opinion  of  the  Chief  Justice. 


VAN    BUREN    WHEAT  et  al..  Respondents,  v.  HARVEY 
RICE  ET  AL.,  Appellants. 

In  THE  Court  of  Appeals  of  New  York,  November  25,  1884. 

[Reported  in  97  New  York  Reports  296.J 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  fourth  judicial  department,  entered  upon  an  order 
made  April  8th,  1882,  which  dismissed  an  appeal  taken  by  de- 
fendants Rice  and  others  from  judgment  in  favor  of  plaintiffs, 
entered  upon  the  report  of  a  referee. 

This  action  was  brought  to  reform  a  contract  between  plain- 
tiffs and  defendant  Stotenburgh  by  striking  out  certain  clauses 
which,  plaintiffs  alleged,  had  been  inserted  therein  by  mistake 
of  the  scrivener,  and  without  the  knowledge  or  assent  of  the 
parties. 


822  WHEAT  ct  al.  V.  RICE  et  al.  [chap.  hi. 

The  defendants  other  than  Stotenburgh  are  creditors  of  the 
firm  of  Stotenburgh,  Root  &  Co.,  and  they  alone  appeared  and 
answered. 

The  material  facts  are  stated  in  the  opinion. 

Marsemis  H.  Briggs  for  appellants. 

John  Callister  for  respondents. 

Finch,  J.  The  plaintiffs  and  the  defendant  Stotenburgh 
signed  an  agreement  in  writing  containing  two  clauses  which 
were  afterward  claimed  to  have  been  inserted  by  mistake. 

At  the  date  of  its  execution  the  firm  of  Stotenburgh,  Root  & 
Co.  was  indebted  to  several  creditors,  and,  continuing  its  busi- 
ness thereafter,  contracted  other  and  additional  debts  to  the 
same  and  other  persons.  Both  classes  of  creditors  are  among 
the  defendants  in  this  action.  The  written  agreement  stipulated 
that  Stotenburgh  sold  to  Wheat  &  Salisbury,  the  present  plain- 
tiffs, "  the  equal  undivided  one  quarter  of  the  plaster  mill  and 
quarries,  and  one  quarter  of  all  the  personal  property  of  the 
firm  of  Stotenburgh,  Root  &  Co.,"  in  consideration  whereof 
Wheat  &  Salisbury  agreed  to  pay  to  Stotenburgh  $3000,  and 
"  to  assume  and  pay  one  quarter  of  the  present  incumbrance 
on  the  property,"  "  and  one  quarter  of  all  the  indebtedness  of 
the  firm  of  Stotenburgh,  Root  &  Co.,  of  which  the  said  Isaac 
Stotenburgh  is  a  member,  as  the  same  may  become  due  and 
payable."  The  written  instrument  contained  also  a  further 
stipulation,  "  that  by  reason  of  said  purchase  the  said  Van 
Buren  Wheat  and  Joseph  F.  Salisbury  become  members  of  said 
firm  of  Stotenburgh,  Root  &  Co.,  to  the  amount  of  one  quarter 
interest  in  all  the  real  and  personal  property  belonging  to  the 
said  firm  of  Stotenburgh,  Root  &  Co.,  and  liable  to  pay  the 
indebtedness  of  the  said  firm  in  the  same  manner  and  to  the 
same  extent  as  if  the}''  had  been  members  of  the  original  firm 
of  Stotenburgh,  Root  &  Co."  When  some  considerable  time 
after  its  date  the  plaintiffs  discovered  that  the  instrument  which 
they  had  signed  contained  the  two  clauses  in  question,  they 
commenced  an  action  in  equity  to  reform  the  writing  by  strik- 
ing out  the  promise  to  pay  one  quarter  of  the  firm  indebted- 
ness, and  the  agreement  to  become  a  partner.  Stotenburgh 
was  made  a  defendant,  and  also  the  creditors  of  the  firm.  The 
allegations  of  the  complaint  relating  to  and  affecting  the  latter 
were  that  they  "  have  given  out  and  claim  that  these  plaintiffs 
are  liable  as  members  of  said  firm  to  pay  each  and  every  of  said 
promissory  notes,  and  they  severally  threaten  to  sue  the  said 
firm,  and  these  plaintiffs  as  members  of  said  firm  upon  their 
respective  promissory  notes,  and  the  said  Mary  A.  B.  Swan  has 
sued  the  said  firm  and  these  plaintiffs  upon  her  said  promissory 


SEC.  I.]  WHEAT  et  al.  V.  RICE  et  al.  823 

note  of  $142.50,  which  suit  is  still  pending  and  undetermined." 
The  complaint  gave  the  date  of  the  last-named  note,  which  was 
April  ist,  1875,  while  the  written  agreement  was  dated  the 
November  previous.  The  relief  specifically  asked  against  these 
creditors  was  that  they  be  restrained  until  the  determination  of 
the  action  from  prosecuting  the  plaintiffs  "  on  their  said  pro- 
missory notes."  It  is  to  be  observed,  therefore,  that  the  com- 
plaint makes  no  reference  to  any  right  of  action  of  the  creditors 
except  that  against  tlie  firm  and  the  plaintiffs  as  members  of 
the  firm,  and  there  is  neither  averment,  admission,  nor  the  least 
intimation  that  the  creditors  who  were  such  at  the  date  of  the 
writing  had  accepted  or  adopted,  by  word  or  act,  the  promise 
contained  in  it  to  pay  the  existing  indebtedness  of  the  firm  ; 
nor  is  any  relief  asked  restraining  them  from  suing  on  such 
promise.  The  creditors  answered.  They  on  their  part  make 
no  allusion  to  that  promise  ;  they  do  not  allege  that  they 
accepted  or  adopted  it,  or  claim  any  right  founded  upon  it  ; 
but,  on  the  contrary,  put  their  rights  explicitly  upon  the  ground 
of  plaintiffs'  liability  as  members  of  the  firm,  and  the  only 
allegation  even  remotely  or  incidentally  referring  to  the  debts 
of  the  firm  which  antedated  the  written  agreement  was  that 
after  that  date  each  had  "  extended  to  the  said  firm  of  Stoten- 
burgh,  Root  &  Co.  credit,  and  loaned  moneys,  or  continued  the 
loan  of  moneys  previously  loaned  to  said  firm,"  relying  on 
knowledge  of  the  agreement  "and  the  partnership  of  said 
plaintiffs."  The  pleadings,  therefore,  did  not  assert  any  accept- 
ance or  adoption  by  the  creditors  at  any  time  of  the  special 
promise  to  pay  the  debts  existing  at  the  date  of  the  agreement, 
but,  on  the  contrary,  raised  only  the  question  whether  the 
plaintiffs  had  actually  become  partners,  or  had  made  themselves 
liable  by  acting  or  holding  themselves  out  as  such.  Upon  the 
trial  the  plaintiffs  gave  evidence  confined  to  the  question  of  re- 
formation, and  when  they  rested,  the  defendants  moved  for  a  non- 
suit upon  the  express  ground,  among  others,  that  "the  complaint 
does  not  allege,  and  plaintiffs  have  failed  to  show  that  the  claims 
of  the  defendants  set  forth  in  the  complaint  are  based  on  the 
contract  sought  to  be  reformed,  or  that  the  defendants  threaten  to 
set  up  in  their  actions  at  law  the  contract  sought  to  be  reformed. ' ' 
Nowhere  in  the  defendants'  evidence  was  there  proof  of  any 
act  or  word  of  the  creditors  accepting  or  adopting  the  promise 
to  pay  debts  ;  but,  on  the  contrary,  at  the  close  of  the  case  the 
motion  for  a  nonsuit  was  repeated  upon  all  the  grounds  first 
stated,  including  that  which  denied,  on  behalf  of  the  creditors, 
any  assertion  in  the  pleadings  or  proof  that  an  action  had  been 
threatened  upon  the  contract. 


824  WHEAT  ct  al.  V.   RICE  ct  al.  [chap.  hi. 

Laying  aside,  then,  for  later  consideration,  that  part  of  the 
writing  which  purported  to  make  plaintiffs  partners  in  the  firm 
of  Stotenburgh,  Root  &  Co.,  and  confining  our  attention  to  the 
promise  of  plaintiffs  to  pay  one  quarter  of  the  debts  of  the  firm, 
standing  alone  and  by  itself,  there  are  disclosed  two  reasons 
[  why  that  promise  gave  the  creditors  no  rights  whatever,  and 
why  they  had  no  legal  interest  in  the  action  to  reform  the  con- 
tract. 

The  first  is  that  no  promise  was  made  to  pay  any  single  one 
of  such  creditors,  or  for  the  benefit  of  any  one  of  them.  The 
promise  was  made  to  Stotenburgh,  and  for  his  benefit  and  that 
of  the  firm  alone.  The  plaintiffs  agreed  to  pay  one  quarter  of 
the  firm's  indebtedness.  If  the  next  day  they  had  ascertained 
its  entire  amount  and  paid  over  to  Stotenburgh,  Root  &  Co. 
one  quarter  of  that  total  their  contract  would  have  been  ful- 
filled. They  would  have  put  back  into  the  firm  assets  precisely 
what  they  had  agreed  to  give  for  what  was  taken  out.  Or  if, 
again,  there  were  ten  creditors,  all  of  whose  debts  were  due, 
and  one  of  them  held  one  quarter  of  the  total,  the  plaintiffs 
might  pay  him  and  owe  nothing  to  the  other  nine,  or  pay  a  part 
of  the  nine  and  owe  nothing  to  the  rest.  In  other  words,  no 
one,  nor  any  specific  and  identical  creditor,  could  so  show,  in 
advance  of  payment,  that  the  promise  was  intended  for  his 
benefit,  or  covered  any  part  of  his  debt  as  to  establish  that  he 
could  maintain  an  action  on  such  promise.  Whether  it  would 
benefit  him  or  not  depended  wholly  upon  the  undisclosed  option 
of  the  plaintiffs  down  to  the  moment  at  which  they  were  re- 
quired to  pay  "  one  quarter  of  the  indebtedness"  of  the  firm. 
It  would  be  a  very  great  extension  of  the  doctrine  of  Lawrence  v. 
Fox,  20  N.  Y.  268,  to  give  a  right  of  action  to  a  creditor  for 
whose  benefit  the  promise  might  or  might  not  have  been  made. 
In  Barlow  v.  Myers,  64  N.  Y.  41,  where  the  promise  was  to  pay 
generally  "  the  debts  of  Randall  &  Williams,  without  specifica- 
tion of  the  particular  debts,  or  naming  the  creditors  of  the 
firm,"  attention  was  called  to  the  fact  that  in  this  respect  the 
case  differed  from  all  the  cases  in  which  the  right  of  action  had 
been  sustained  in  behalf  of  the  third  party.  But  while  there  it 
was  possible  to  say  that  the  creditors  were  sufficiently  identified 
as  belonging  to  a  class  all  of  whom  were  to  be  paid,  here,  on 
the  other  hand,  no  class  is  named  or  described,  and  who  was  to 
be  paid  by  the  promisor,  or  to  what  extent  is  left  absolutely 
uncertain  and  undetermined.  We  prefer  to  restrict  the  doc- 
trine of  Lawrence  v.  Fox  within  the  precise  limits  of  its  orig- 
inal application. 

But  there  is  another  reason  for  saying  that  the   defendant 


SEC,  I.]  WHEAT  ct  al.   V.    RICE  ct  ill.  825 

creditors  had  no  legal  interest  in  the  promise  of  plaintiffs  which 
could  entitle  them  to  contest  the  action  for  a  reformation  of  the 
contract.  We  held  in  Dunning  v.  Leavitt,  85  N.  Y.  35,'  and 
again  in  Crowe  v.  Levvin,  95  N.  V.  423,  that  the  right  of  the 
third  party  benefited  by  the  promise,  at  least  before  he  had 
accepted  and  adopted  it,  was  of  such  derivative  and  imperfect 
character,  if,  indeed,  it  attached  at  all,  and  was  so  subject  to 
the  relations  and  equities  of  the  original  promisor  and  prom- 
isee, that  the  destruction  of  the  consideration  of  the  promise  in 
the  one  case  and  the  rescission  or  annulment  of  the  contract  in 
the  other,  in  actions  to  which  the  alleged  beneficiary  was  not  a 
part}^  and  in  which  he  had  not  been  heard,  barred  and  prevented 
him  from  any  right  of  action  upon  the  promise.  If  we  have 
construed  tlie  pleadings  and  read  the  evidence  correctly,  that  is 
the  case  here.     There  had  been  no  acceptance  or  adoption  by 

'  It  is  said  that  the  action  can  be  sustained  upon  the  doctrine  of  Law- 
rence V.  Fox.  20  N.  Y.  26S,  and  kindred  cases.  But  I  know  of  no  authority 
to  support  the  proposition  that  a  person  not  a  party  to  the  promise,  but  for 
whose  benefit  the  promise  is  made,  can  maintain  an  action  to  enforce  the 
promise  where  the  promise  is  void  as  between  the  promisor  and  promisee, 
for  fraud,  or  want  of  consideration,  or  failure  of  consideration.  It  would 
be  strange,  I  think,  if  such  an  adjudication  should  be  found.  The  party 
suing  upon  the  promise,  in  cases  like  Lawrence  v.  Fox,  is  in  truth  asserting 
a  derivative  right.  lu  Yrooman  7/.  Turner,  69  N.  Y.  280,  it  was  held  that 
an  assumption  clause  in  a  deed  did  not  give  a  right  of  action  to  the  mort-j 
gagee,  where  the  grantor  was  not  himself  liable  to  pay  the  mortgage  debt, 
although  in  that  case  there  was  ample  consideration  for  the  promise  of  the) 
defendant. 

There  is  no  justice  in  holding  that  an  action  on  such  a  promise  is  not  sub- 
ject to  the  equities  between  the  original  parties  springing  out  of  the  trans- 
action or  contract  between  them.  It  may  be  true  that  the  promise  cannot 
be  released  or  discharged  by  the  promisee,  after  the  rights  of  the  party  for 
whose  benefit  it  is  said  to  have  been  made  have  attached.  But  it  would  be 
contrary  to  justice  or  good  sense  to'  hold  that  one  who  comes  in  by  what 
Allen,  J.,  in  Yrooman  v.  Turner,  calls  "  the  privity  of  substitution,"  should 
acquire  a  better  right  against  the  promisor  than  the  promisee  himself  had. 
This  case  is  an  illustration.  The  plaintiffs,  when  they  took  their  mortgage, 
did  not  rely  upon  the  covenant  they  now  seek  to  enforce.  The  covenant 
was  not  made  until  several  years  afterward.  There  was  no  consideration 
for  it  passing  between  the  plaintiffs  and  Mrs.  Leavitt.  They  now  seek  to 
avail  themselves  of  it,  and  insist  that  although  the  consideration  has  failed, 
this  defence  is  not  available  to  the  defendant,  and  that  Mrs.  Leavitt, 
although  she  has  paid  $10,000  in  cash  for  property  to  which  her  grantor  had 
no  title,  must  pay  $15,000  more,  if  need  be,  and  be  remitted  for  her  remedy 
to  the  covenants  in  her  deed,  which  may,  from  the  insolvency  of  her  grantor 
or  other  reasons,  be  wholly  worthless.  The  plaintiffs  have  nothing  to  sell 
on  their  mortgage,  and  if  they  can  hold  Mrs.  Leavitt  for  the  deficiency,  they 
will  be  able  to  shift  the  burden  of  a  practically  unsecured  claim  upon  a 
party  with  whom  they  have  had  no  dealing  whatever.- -Andrews,  J.,  Dun- 
ning et  al.  V.  Leavitt,  85  N.  Y.  30,  35-36. — Ed. 


826  WHEAT  ct  al.  T.  RICE  ct  al.  [chap.  hi. 

word  or  act.  Something  of  that  kind_was_  essential.  Turk  v. 
Ridge,  41  N.  Y.  206  ;  Garnsey  v.  Rogers,  47  N.  Y.  242  ;  Vroo- 
man  v.  Turner,  69  N.  Y.  285  ;  Knickerbocker  Life  Ins.  Co.  v. 
Nelson,  78  N.  Y.  151  ;  Brewer  v.  Dyer,  7  Cush.  337.  What  it 
should  be,  whether  a  bare  assent  communicated  to  the  prom- 
isor, or  some  decisive  act  of  the  third  party  by  which  his  orig- 
inal position  and  rights  have  been  changed  in  reliance  upon  the 
promise,  before  the  equities  between  the  contractors  become 
burdened  with  a  right  to  interfere  and  be  heard  belonging  to 
the  third  party,  we  do  not  now  decide  because  it  is  wholly  un- 
necessary. It  is  enough  that  these  creditors  neither  by  word 
nor  act  in  any  manner  assented  to  or  adopted  the  promise  before 
the  action  for  its  reformation.  They  were,  therefore,  not  neces- 
,  Isary  parties  to  that  action,  had  no  legal  interest  in  it,  and  were 
properly  denied  the  right  of  appeal. 

It  only  remains  to  consider  whether  the  other  clause  of  the 
writing  which  purported  to  make  the  plaintiffs  partners  in  the 
firm  of  Stotenburgh,  Root  &  Co.  gave  the  creditors  a  right  to 
resist  the  reformation  of  the  writing.  They  had  no  legal  inter- 
est in  the  question.  The  judgment  rendered  does  not  at  all  bar 
their  right  to  sue  the  plaintiffs  as  members  of  the  firm  of  Stoten- 
burgh, Root  &  Co.,  to  establish  that  they  were  partners,  or  had 
so  held  themselves  out  as  such  as  to  have  become  liable.  Rela- 
tively to  that  ground  of  action  the  writing  was  but  evidence, 
and  the  creditors  had  no  vested  right  to  prevent  the  parties  to 
it  from  making  it  speak  the  truth.  The  opinion  of  the  General 
Term  states  this  proposition  so  clearly  that  the  appellants  here 
practically  concede  it,  but  insist  that  "  instead"  of  resting  upon 
the  ground  of  partnership,  "the  appellants  seek  to  recover 
upon  the  contract  itself  for  indebtedness  included  within  its 
terms."  We  have  already  considered  that  ground  of  interfer- 
ence by  the  creditors  and  decided  against  it.  It  follows  that 
the  General  Term  committed  no  error  in  dismissing  the  appeal. 

The  judgment  should  be  affirmed  with  costs. 

All  concur  except  Rapallo,  J.,  absent. 

Judgment  affirmed. 


SEC.  I.]  ADAMS    7'.    KUEIIN.  827 


SAMUEL    ADAMS  v.   DAVID    KUEHN. 

In  the  Supreme  Court  of  Pennsylvania,  January  Term, 

1S87. 

[Reported  VI  119  Pejinsylvam'a  State  Reports  76.] 

Before  Gordon,  C.J.,  Paxson,  Sterrett,  Green,  and  Wil- 
liams, JJ.;  Trunkey  and  Clark,  JJ.,  absent. 

No.  228  January  Term,  1887,  Supreme  Court  ;  Court  below, 
No.  40  January  Term,  1886,  Common  Pleas.' 

Edward  Harvey  for  the  plaintiff  in  error. 

C.  J.  Erdman  [Hemiitiger  and  Dewalt)  for  the  defendant  in 
error. 

Williams,  J.  In  1S84  and  for  several  years  prior  thereto,  the 
firm  of  Weaver  Brothers  was  extensively  engaged  in  the  manu- 
facture of  cigars.  Samuel  Adams  was  an  accommodation  en- 
dorser for  them,  and  in  August,  1884,  was  upon  their  paper  for 
upward  of  $40,000.  He  became  satisfied  that  the  firm  was  in- 
solvent, and  asked  them  to  secure  him  by  giving  him  a  judg- 
ment note  in  a  sum  sufficient  to  cover  his  endorsements,  so  that 
he  could  have  judgment  entered  against  them  and  their  stock 
seized  and  sold  by  the  sheriff.  On  August  12th,  1884,  they 
executed  and  delivered  to  him  a  judgment  note  for  $25,500,  on 
which  he  caused  judgment  to  be  entered  and  execution  to  issue. 
The  Weaver  Brothers  claim  that  this  judgment  note  was  exe- 
cuted by  them  upon  the  promise  by  Adams  that  he  would  do 
the  following  things — viz.,  that  he  would  pay  all  their  debts 
without  regard  to  their  number  or  amount  ;  that  he  would  pay 
to  them  the  sum  of  $4000  in  cash  ;  give  them  a  house  and  lot 
adjoining,  and  some  vacant  lots  in  rear  of,  the  property  then 
occupied  by  them  ;  provide  them  a  half  interest  in  a  grocery 
store  and  give  them  a  "  free  name."  David  Kuehn  was  a 
creditor  of  the  Weaver  Brothers  at  the  time  of  their  failure,  and 
brings  this  suit  against  Adams  to  recover  the  debt  due  him 
from  Weaver  Brothers.  He  seeks  to  recover  on  the  contract 
which  the  Weavers  claim  to  have  made  with  Adams  when  the 
judgment  note  was  given  him.  Upon  the  trial  two  questions 
were  raised  ;  one  of  fact  as  to  the  making  of  the  contract  on 
which  the  plaintiff  sued,  and  one  of  law  as  to  his  right  to  sue 
upon  it  if  made  as  alleged.  The  jury  under  an  instruction  from 
the  Court  that  the  action  was  well  brought  if  they  found  the 
contract  to  have  been  made,  have  decided  that  this  remarkable 
'  The  statement  of  facts  has  been  omitted. — Ed. 


828  ADAMS   1'.    KUEHN.  [cHAP.  III. 

contract  was  made  as  testified  to  by  the  Weavers.  The  ques- 
tion now  to  be  considered  is  the  correctness  of  the  instruction. 

The  contract  sued  on  is  one  to  which  the  plaintiff  is  a  stranger. 
It  was  made  with  the  Weaver  Brothers.  The  consideration 
moved  wholly  from  them  and  they  were  the  parties  to  be  bene- 
fited by  the  performance  of  its  terms.  The  common  law  rule 
is  that  "  no  one  can  sue  on  a  contract  to  which  he  is  not  a 
party."  Whart.,  Contracts,  784  ;  Hare  on  Contracts,  193. 
The  same  rule  is  laid  down  in  Chitty's  Pleading.  It  is  still 
adhered  to  in  England.  In  this  country  it  is  recognized  as  the 
law  in  most  of  the  States  and  by  the  Supreme  Court  of  the 
United  States.  98  U.  S.  Rep.  123.  In  this  State  it  was  stated 
very  clearly  by  Sergeant,  J.,  in  Blymire  v.  Boistle,  6  W.  182. 
That  case  has  been  followed  and  the  authority  of  the  rule  recog- 
nized in  several  later  cases,  among  which  are  Torrens  v.  Camp- 
bell, 74  Pa.  472,  and  Kountz  v.  Holthouse,  85  Pa.  235.  In  the 
latter  of  these  cases  it  was  applied  by  Mercur,  J.,  who  said  : 
"  As  he  (the  plaintiff)  was  a  stranger  to  the  contract  and  to  the 
consideration  on  which  it  rested,  he  could  not  recover."  In 
Guthrie  v.  Kerr,  85  Pa.  303,  where  it  was  apparent  that  an 
action  could  have  been  maintained  by  the  personal  representa- 
tives of  Alexander  Guthrie,  it  v/as  said  that  "  it  would  be  a 
harsh  rule  of  law  that  would  throw  on  the  defendant  the  addi- 
tional burden  of  a  suit  by  each  of  the  legatees." 

There  is,  however,  a  line  of  cases  in  which  a  third  party  has 
been  allowed  to  recover  on  a  contract  to  which  he  was  not  a 
party,  and  several  of  these  are  brought  to  our  attention  by  the 
defendant  in  error.  An  examination  of  these  cases  will  show 
that  they  recognize  the  rule  as  we  have  stated  it,  and  are  re- 
lieved from  its  operation  because  of  the  nature  of  the  consider- 
ation of  the  contract  sued  on.  The  distinction  on  which  they 
rest  is  pointed  out  in  Blymire  7'.  Boistle,  supra.  Where  one 
person  enters  into  a  contract  with  another  to  pay  money  to  a 
third,  or  to  deliver  some  valuable  thing,  and  such  third  party 
is  the  only  party  interested  in  the  payment  or  the  delivery,  he 
can  release  the  promisor  from  performance  or  compel  perform- 
ance by  suit.  If,  on  the  other  hand,  a  debt  already  exists  from 
one  person  to  another,  a  promise  by  a  third  person  to  pay  such 
debt  is  for  the  benefit  of  the  original  debtor  to  whom  it  is  made, 
and  can  only  be  released  or  enforced  by  him.  If  it  could  also 
be  enforced  by  the  original  creditor  the  promisor  would  be 
liable  to  two  actions  for  the  same  debt  at  the  same  time  and 
upon  the  same  contract.  Among  the  exceptions  are  cases 
where  the  promise  to  pay  the  debt  of  a  third  person  rests  upon 
the  fact  that  money  or  property  is  placed  in   the  hands  of  the 


SEC.  I.]  ADAMS   V.    KUEHN.  829 

promisor  for  that  particular  purpose.  Also  where  one  buys  out 
the  stock  of  a  tradesman  and  undertakes  to  take  the  place,  fill 
the  contracts,  and  pay  the  debts  of  his  vendor.  These  cases  as 
well  as  the  case  of  one  who  receives  money  or  property  on  the 
promise  to  pay  or  deliver  to  a  third  person,  are  cases  in  which 
the  third  person,  although  not  a  party  to  the  contract,  may  be 
fairly  said  to  be  a  party  to  the  consideration  on  which  it  rests. 
In  good  conscience  the  title  to  the  money  or  thing  which  is  the 
consideration  of  the  promise  passes  to  the  beneficiary,  and  the 
promisor  is  turned  in  effect  into  a  trustee.  But  when  the  prom- 
ise is  made  to,  and  in  relief  of  one  to  whom  the  promise  is 
made,  upon  a  consideration  moving  from  him,  no  particular 
fund  or  means  of  payment  being  placed  in  the  hands  of  the 
promisor  out  of  which  the  payment  is  to  be  made,  there  is  no 
trust  arising  in  the  promisor  and  no  title  passing  to  the  third 
person.  The  beneficiary  is  not  the  original  creditor  who  is  a 
stranger  to  the  contract  and  the  consideration,  but  the  original 
debtor  who  is  a  party  to  both,  and  the  right  of  action  is  in  him 
alone. 

The  application  of  this  rule  to  the  case  under  consideration 
is  decisive  of  the  plaintiff's  case.  If  Adams  made  the  agree- 
ment sued  on,  he  made  it  with  Weaver  Brothers.  Its  various 
provisions  were  for  their  benefit.  No  fund  was  provided-  for 
the  payment  of  the  plaintiff's  debt,  no  property  was  set  apart 
for  his  benefit.  The  note,  under  all  the  evidence,  was  given 
for  the  purpose  of  covering  the  endorsements  of  Adams.  This 
case,  therefore,  stands  under  the  general  rule  and  is  not  brought 
within  the  limit  of  the  exceptions  to  its  operation.  The  sugges- 
tion of  the  Court  below  that  the  title  might  be  amended  by 
adding  the  name  of  the  Weaver  Brothers  as  legal  plaintiffs,  will 
not  relieve  against  the  difficulty.  If  the  plaintiff  can  maintain 
his  suit  so  can  every  creditor  of  the  Weaver  Brothers  maintain 
his  separate  action  for  his  particular  debt  upon  the  same  con- 
tract, and  we  would  then  have  the  Weaver  Brothers  as  legal 
plaintiffs  in  possibly  one  hundred  or  more  suits  for  the  use  of 
so  many  separate  creditors  on  the  same  contract  ;  and,  to  close 
the  series,  an  action  by  the  Weavers  to  recover  for  the  non-per- 
formance of  such  portions  of  the  contract  as  related  to  payment 
of  money  or  delivery  of  property  directly  to  themselves.  The 
inconvenience  and  injustice  of  such  a  result  is  too  obvious  to 
require  discussion. 

Judgment  reversed. 


830  WOOD   &   WOOD   V.    MORIARTY.  [CHAP.  III. 


HENRY  B.  WOOD  &  ANTHONY  G.  WOOD,  Copartners,  v. 
THOMAS  MORIARTY. 

In  the  Supreme  Court  of  Rhode    Island,   March    19,   1887. 
\Rcported  in  15  Rhode  Islajid  Reports  518.] 

Plaintiff's  petition  for  a  new  trial. 

Durfee,  C.J.  This  is  assumpsit  for  the  price  of  lumber  fur- 
nished to  one  Joshua  W.  Tibbetts  for  use  in  the  erection  of  two 
houses  for  the  defendant,  Tibbetts  having  entered  into  a  written 
contract  with  the  defendant  to  build  the  houses  before  the 
lumber  was  furnished.  Tibbetts,  after  going  on  for  a  while  in 
the  execution  of  the  contract,  released  or  assigned  it  to  the 
defendant  by  an  instrument  under  seal.  The  instrument  begins 
by  reciting  the  existence  of  the  contract,  and  proceeds  as  fol- 
lows, to  wit  : — 

"  Now  know  ye  that,  for  good  and  sufficient  reasons,  and  in 
consideration  of  the  sum  of  twenty-five  dollars  paid  to  me  this 
day  by  said  Moriarty,  I  hereby  transfer  and  assign  said  contract 
back  to  said  Thomas  Moriarty,  he  agreeing  to  relieve  me  from 
further  obligation  under  it,  and  I  hereby  releasing  him  from  all 
claims  or  demands  of  whatever  kind  I  may  have  or  have  had 
up  to  this  day,  August  26th,  1885,  against  said  Moriarty,  I  hereby 
acknowledging  full  payment  for  said  claims  and  demands,  and 
this  shall  be  his  receipt  in  full  for  the  same  to  date,  meaning 
hereby  to  convey  to  the  said  Moriarty  all  my  right,  title,  and 
interest  into  and  under  said  contract,  desiring  to  relieve  myself 
from  completing  the  work  under  the  contract,  and  hereby  agree 
to  withdraw  from  said  work  on  said  houses,  and  leave  them  to 
his  sole  charge  and  care." 

At  the  trial,  testimony  was  introduced  or  offered  to  prove 
the  purchase  of  the  lumber  ;  the  execution  of  the  release  or 
assignment  ;  that  the  defendant,  besides  paying  the  considera- 
tion recited  therein,  agreed,  by  way  of  further  consideration, 
to  pay  all  bills  incurred  by  Tibbetts  on  account  of  the  contract 
released  ;  that  among  these  bills  was  the  bill  of  the  plaintiffs 
for  lumber  ;  and  that  notice  of  the  arrangement  between  Tib- 
betts and  the  defendant  was  given  by  Tibbetts  to  the  plaintiffs. 
The  testimony  as  to  the  agreement  to  pay  the  bills  incurred  by 
Tibbetts  was  allowed  to  go  in  de  bene  esse,  and  at  the  close  of 
the  testimony  for  the  plaintiffs  the  Court  directed  a  nonsuit. 
The  plaintiffs  petition  for  a  new  trial. 

The  questions  are,   whether  the    plaintiffs   were   entitled   to 


SEC.  I.]  WOOD    &    WOOD    V.    MORIARTY.  83 1 

prove  by  oral  testimony  that  the  defendant  agreed  to  pay  the 
bills  incurred  by  Tibbetts  under  his  contract,  by  way  of  further 
consideration  for  the  release  or  assignment,'  and  if  so,  whether, 
upon  proof  thereof,  the  plaintiffs  could  maintain  their  action. 

The  defendant  contends  that  the  agreement  was  witliin  the 
Statute  of  Frauds,  being  an  agreement  not  in  writing  to  answer 
for  the  debt  of  another.  But  an  agreement  to  answer  for  the 
debt  of  another,  to  come  within  the  Statute  of  Frauds, 
must  be  an  agreement  with  the  creditor.  A  promise  by  A.  to  B. 
to  pay  a  debt  due  from  B.  to  C.  is  not  within  the  Statute  of 
Frauds.  Eastwood  v.  Kenyon,  11  A.  &  E.  438  ;  Browne  on  the 
Statute  of  Frauds,  §  188.  The  contract  here,  as  made  between 
Tibbetts  and  the  defendant,  was  certainly  not  within  the 
statute.  The  question,  therefore,  takes  this  form — namely, 
whether  the  plaintiffs  are  entitled  to  take  advantage  of  the  con- 
tract and  bring  suit  upon  or  under  it,  and  if  so,  whether  to 
such  suit  the  statute  is  not  a  good  defence.  Some  of  the  cases 
cited  for  the  plaintiffs  cover  both  these  points  completely. 
Barker  v.  Bucklin,  2  Denio,  45  ;  Johnson  v.  Knapp,  36  Iowa, 
616  ;  Barkers.  Bradley,  42  N.  Y.  316,  i  Amer.  Rep.  521  ;  Beas- 
ley  V.  Webster,  64  111.  458  ;  Jordan  v.  White,  20  Minn.  91  ; 
Joslin  V.  New  Jersey  Car  Spring  Co.  36  N.  J.  Law,  141  ;  Town- 
send  V.  Long,  77  Pa.  St.  143,  146.  Similar  citations  might  be 
multiplied  if  we  cared  to  load  our  opinion  with  them.  See 
Browne  on  the  Statute  of  Frauds,  §§  166  a-i66  b^  and  notes. 
On  the  other  hand,  the  cases  are  numerous  which  hold  that 
such  an  action  is  not  maintainable  for  want  of  privity  between 
the  parties.  Mr.  Browne,  in  §  166  a,  says  that  this  is  the  settled 
doctrine  in  England,  Michigan,  and  Connecticut  ;  that  in 
North  Carolina  and  Tennessee  the  question  seems  to  remain 
open  ;  and  that  in  Massachusetts  the  English  doctrine  seems  to 
be  growing  in  favor,  contrary  to  the  earlier  cases  ;  but  that  in 
the  other  States  the  creditor's  right  to  sue  has  been  generally 
recognized.  The  course  of  decision  in  this  State  favors  the 
creditor's  right  to  sue,  and  in  principle,  we  think,  recognizes 
it,  though  it  has  not  hitherto  extended  to  a  purely  oral  contract. 
Urquhart  v.  Brayton,  12  R.  I.  169  ;  Merriman  v.  Social  Manu- 
facturing Co.  12  R.  I.  175.  Courts  that  allow  the  action  gen- 
erally hold  that  it  is  not  affected  by  the  Statute  of  Frauds, 
though,  as  Mr.  Browne  remarks,  they  do  not  unite  in  the 
reasons  which  they  give  for  so  holding.  Mr.  Browne  himself 
suggests  that  the  contract,  as  between  the  creditor  and  promisor, 
arises  by  implication  out  of  the  duty  of  the  promisor  under  his 
contract  with  the  debtor,  and  that,  being  implied,  it  is  not  with- 
'  So  much  of  the  opinion  as  relates  to  this  question  has  been  omitted. — Ed. 


832  WOOD    &    WOOD    V.    MORIARTY.  [cHAP.  III. 

in  the  Statute  of  Frauds.  Browne  on  the  Statute  of  Frauds, 
§  166  b.  The  view  accords  with  the  doctrine  of  Brewer  v.  Dyer, 
7  Cush.  337,  where  the  Court  remark,  p.  340,  "that  the  law, 
operating  on  the  act  of  the  parties,  creates  the  duty,  establishes 
the  privity,  and  implies  the  promise  and  obligation  on  which 
the  action  is  founded." 

The  diversity  of  decision  shows  that   the   action    cannot   be 

maintained   without  resorting  to   implications   or  assumptions 

which  the  courts  do  not  always  find  it  easy  to  allow,  and  which 

they  sometimes  refuse  to  allow.     It  seems  to  us  that  we  shall 

best  find  the  grounds,  if  there  are  any,  on  which  the  action  can 

be  maintained,   by  an' analysis  or  explication   of   the   contract 

with  the  debtor.     The  contract  is  this  :  A.  agrees  with  B.,  for 

a  consideration  moving  from  B.,  to  pay  to  C.  the  debt  which  B. 

owes  to  C.     The  contract  is  absolute.     If  A.  does  not  pay  the 

debt,  and  B.  has  to  pay,  it  is  broken.      It  is,  therefore,  a  contract 

by  A.  to  pay  the  debt  in  lieu  of  B.,  or  in  relief  of  B.;  to  take  it 

on  himself,  and  become,  so  far  as  he  can  independently  of  C, 

the  debtor  of  C.  in   place  of  B.     The  contract,  as  between  A. 

and   B.,  is  not  collateral,  but  substitutional.     But,   this   being 

so,  how  does  C,  who  is  not  a  party  to  it,  get  the  right  to  sue 

A.  upon  or  by  reason  of  it  ?     It  has    been  held  that  he  gets  this 

right  directly  from  the  contract  itself,  because  B.,  in  making  it 

with  A.,  makes  it  for  C,  if  C.  desires  to  accede  to  it,  as  well  as 

for  himself,  so  that  C.  has  only  to  ratify  or  assent  to  it,  which 

he  does  unequivocally  by  suing  on  it.     But,  in  this  view,  if  C. 

accepts  the  contract,  he  must  accept  it  as  made  ;  that  is,  as  a 

contract  by  which- A.  agrees  that  he,  instead  of  B.,  will  pay  the 

debt  which  B.  owes  to  C.     C.  cannot,  at  the  same  time,  assent 

to  the  contract  and  dissent  from  the  terms  of  it.     Accordingly, 

if  he  sues  A.  on  the  contract,  he  must  sue  him   instead  of   B.. 

and  cannot  also  sue  B.,  and  B.  is  therefore  released.     But,  as 

we  have  seen,  another  view  has  been  taken.     It  has  been  held 

that  the  contract  between  A.  and  B.  imposes  a  duty  upon  A.  to 

pay  to  C.  the  debt  which  B.  owes  to  him,  and  that  from  this 

duty  the  law  implies  a  promise  by  A.  in  favor  of  C.  to  pay  B.'s 

debt  to   C.     But   if  a   promise   is   implied   from   the  duty,  the 

promise  must  correspond   to  the   duty.     The   duty   which   the 

contract  imposes  upon  A.  is  that  he,  instead  of  B.,  shall    pay 

the  debt  which  B.  owes  to  C,  and  accordingly  so  must  be  the 

promise  to  be  implied  from  it.     If,  therefore,  C.  sues  A.  upon 

the  implied  promise,  he  must  sue  him  as  liable,  instead  of  B.,  for 

the  debt  of  B.  to  him,  C ;  he  cannot  consistently  sue  both  A. 

and  B.,  and  consequently  B.  is  released. 

We  do  not  claim  that  either  of  these  views  is  free  from  difR- 


SEC.  I.]  MARSTON   V.    BIGELOW.  833 

culty.  Either  of  them,  however,  is  free  from  one  difficulty 
which  other  views  encounter,  and  which  is  a  principal  reason 
wliy  tlie  courts  which  refuse  to  allow  the  action  refuse  to  do  so. 
Other  views  give  the  creditor  the  benefit  of  the  new  contract 
for  nothing,  since  they  allow  him  still  to  retain  his  hold  upon 
the  original  debtor  ;  whereas,  according  to  either  of  the  views 
above  set  forth,  the  creditor  cannot  have  the  benefit  of  the  new 
■contract  without  assenting  to  the  terms  of  it,  thereby  releasing 
the  original  debtor,  so  that  the  assent  is  in  itself  a  considera- 
tion. As  cases  which  support  these  \uews  we  will  refer  to 
Warren  7'.  Batchelder,.  16  N.  H.  580  ;  Bohannan  v.  Pope,  42 
Me.  93.  See  also,  Clough  v.  Giles,  2  New  Eng.  Reporter,  870. 
Of  course,  if  either  view  be  correct,  the  liability  under  the  con- 
tract is  not  collateral,  but  direct  and  substitutional,  and  there- 
fore not  within  the  Statute  of  Frauds. 

We  do  not  tliink  this  case  is  distinguishable  in  principle  from 
Urquhart  v.  Bray  ton,  12  R.  I.  169.  The  doctrine  of  the  latter 
case  is  not  only  just  and  convenient,  but  also  consonant  with 
the  purposes  of  the  parties,  and  we  are  not  prepared  to  recede 
from  it.  As  is  remarked  by  the  court  in  Lehow  v.  Simonton  et 
al.,  3  Colorado,  346,  "  it  accords  the  remedy  to  the  party  who 
in  most  instances  is  chiefly  interested  to  enforce  the  promise, 
and  avoids  multiplicity  of  actions." 

We  think  the  declaration  is  proper  in  point  of  form,  and  we 
do  not  think  the  nonsuit  is  justifiable  on  the  ground  of  variance. 

In  Warren  v.  Batchelder,  16  N.  H.  580,  the  Court  held  that  a 
demand  on  the  defendant  was  requisite  before  suit.  Whether 
this  is  so  we  need  not  decide,  for  the  evidence  in  this  case 
shows  a  demand  before  suit. 

Stiness,  J.,  non-concurring. 

Petition  granted. 

Daniel  R.  Ballou  6^  Frank  H.  Jackson  for  plaintiff. 

James  Tillinghast  for  defendant. 


JULIA  M.  MARSTON  v.  GEORGE  B.   BIGELOW. 

In  the  Supreme  Judicial  Court  of  Massachusetts,   Septem- 
ber 7,  1889. 

\^Reported  in  150  Massachusetts  Reports  45.] 

Contract,  by  the  administratix  of  the  estate  of  Smith  Curtis, 
for  a  balance  due  upon  the  following  promissory  note  : 

"  Boston,  April  i,  1876. 

"  For  value  received,  I  promise  to  pay   to    Smith    Curtis,  or 
order,     the    sum    of    ten     thousand    dollars,     five    years    from 


834  MARSTON   V.    BIGELOW.  [cHAP.  III. 

date,  at  the  rate  of  six  (6^)  one  half  per  cent  per  annum, 
payable  semi-annually.  Six  months'  notice  in  writing  to  be 
given  to  promisor  or  his  representative  if  payment  at  the 
end  of  said  term  will  be  required,  or  before  enforcing  payment 
if  said  note  is  allowed  to  run  over  the  term  above  limited,  this 
note  being  given  in  full  satisfaction  and  payment  of  all 
demands.  George  B.  Bigelow." 

On  the  back  of  the  note,  among  other  endorsements  of  pay- 
ments of  interest  signed  by  the  intestate,  were  the  following  : 

"  January  29th,  1879,  received  on  account  of  the  within  nine 
hundred  seventeen  ^^0  dollars,  interest  in  full  to  date,  also 
seventeen  hundred  and  seventy  dollars  of  principal." 

"January  22d,  1880,  received  on  account  of  interest  on  the 
within,  twenty  dollars." 

The  answer  was  as  follows  :  "  And  now  comes  said  defendant 
and  says  that  he  made  a  writing  to  the  same  effect  as  that 
declared  upon,  but  he  denies  that  there  ever  has  been  any 
demand  for  payment  as  therein  required  ;  and  he  further  says, 
that  after  making  the  said  writing,  to  wit,  the  twenty-ninth 
day  of  January,  in  the  year  1879,  ^he  father  of  this  defendant 
paid  to  Smith  Curtis,  the  plaintiff's  intestate,  the  sum  of  twenty- 
six  hundred  and  eighty-seven  dollars  and  six  cents,  being  all 
the  interest  accrued  on  the  sum  of  ten  thousand  dollars,  the 
amount  specified  in  said  writing  to  that  date,  and  also  the  sum 
of  seventeen  hundred  and  seventy  dollars  on  account  of  said 
principal  sum,  upon  the  consideration  and  distinct  agreement 
of  said  Curtis  that  he  would  not  thereafter  sue  or  molest  this 
defendant  in  any  way  by  reason  of  the  writing  declared,  or 
attempt  to  enforce  said  claim,  but  this  defendant  might  make 
any  further  payments  at  any  time  thereafter  that  he  might  wish  ; 
and  he  prays  judgment  if  the  plaintiff  ought  to  have  or  main- 
tain this  action  against  him." 

Writ  dated  July  17th,  1886. 

Trial  in  the  Superior  Court,  before  Hammond,  J.,  who,  after 
a  verdict  for  the  plaintiff,  reported  the  case  for  the  determina- 
tion of  this  Court,  as  follows  : 

The  plaintiff  contended  that,  in  March,  1883,  a  notice  was 
given  by  Curtis  to  the  defendant,  which  notice  was  as  follows  : 
"  Mr.  George  B.  Bigelow  :  In  your  note  dated  April  ist,  1878, 
for  ten  thousand  dollars,  given  to  Smith  Curtis,  I  give  you 
notice  I  require  payment  of  said  note  according  to  terms. 
Yours  truly.  Smith  Curtis."  She  offered  evidence  that  one 
Dexter,  on  March  loth,  1883,  wrote  the  above  notice  at  the 
request  of  Curtis,  who  then  signed  it  ;  that  Dexter  put  it  inta 


SEC.  1.]  MARSTON   V.    BIGELOW.  835 

an  envelope  addressed  to  the  defendant  at  the  Old  State  House 
in  Boston,  and  placed  the  same,  postage  paid,  in  the  United 
States  mail  ;  and  that  on  the  envelope  was  a  request  that  the 
letter,  if  not  delivered  in  five  days,  should  be  returned  to  Dex- 
ter, and  that  it  was  not  returned.  The  plaintiff  introduced 
other  evidence  tending  to  show  that  at  a  trial  of  another  action 
the  defendant  testified  that  he  had  no  recollection  of  having 
received  the  notice,  but  that  it  was  possible  he  might  have 
done  so.  There  was  evidence  that  the  defendant,  a  year  and  a 
half  before  March  loth,  1883,  removed  from  the  Old  State  House 
to  another  building  on  Washington  Street  in  Boston,  where  he 
remained  until  after  March  loth,  18S3  ;  but  there  was  no  evidence 
that  the  defendant's  new  address  was  known  to  the  postal 
authorities,  unless  that  fact  can  be  presumed  from  the  usual 
course  of  postal  service  in  the  city  of  Boston.  The  defendant 
testified  that  he  had  no  recollection  that  he  made  any  request 
that  his  letters  should  be  forwarded  to  his  new  address,  or  that 
they  were  so  forwarded  ;  that  he  had  no  reason  to  believe  that 
his  letters  were  regularly  or  usually  forwarded  from  the  old  to 
the  new  address,  but  that  at  that  time  he  was,  and  for  years 
had  been,  a  lawyer  in  active  practice,  and  daily  received  letters 
at  his  office  by  mail  ;  and  that  he  saw  Curtis  a  number  of  times 
after  March  loth,  1883,  and  before  his  death,  and  no  mention 
was  made  of  the  demand. 

The  defendant  offered  to  prove,  by  competent  evidence,  that 
on  January  29th,  1879,  his  father,  Samuel  Bigelow,  conveyed  a 
piece  of  real  estate  to  Curtis  for  the  sum  of  fifteen  thousand 
dollars,  receiving  forty-five  hundred  dollars  in  cash  and  a  por- 
tion of  the  balance  in  an  endorsement  upon  the  note  in  question  ; 
that  Curtis  agreed  with  Samuel  Bigelow,  in  consideration  of 
this  conveyance,  never  to  molest  or  trouble  the  defendant  for 
the  balance  due  upon  the  note  ;  and  that  the  interest  to  Jan- 
uary 29th,  1879,  and  seventeen  hundred  and  seventy  dollars  of 
the  principal  of  the  note,  were  then  paid  by  this  conveyance 
and  endorsed  upon  the  note.  The  plaintiff  admitted  that  these 
sums  should  be  allowed  upon  the  note,  but  objected  to  the 
introduction  of  the  evidence,  on  the  ground  that  the  agreement 
with  Samuel  Bigelow  was  not  a  bar  to  this  action.  The 
defendant  contended  that  this  defence  was  open  to  him  under 
the  Statute  of  1883,  ch.  223,  if  not  before  that  statute,  and  asked  the 
judge  so  to  rule  ;  but  as  Samuel  Bigelow  was  neither  a  party 
to  the  note  nor  to  this  action  the  judge  ruled  that  notwith- 
standing the  Statute  of  1883  the  defence  was  not  open  to  the  de- 
fendant, and  excluded  this  evidence  offered  to  support  it  ;  and 
the  defendant  duly  excepted.     The  defendant  then  moved  that 


836  MARSTON   V.    BIGELOW.  [CHAP.  III. 

Samuel  Bigelow  be  summoned  in  as  a  party  to  this  suit,  so  that 
the  defence  would  become  competent  ;  but  the  judge  ruled, 
as  matter  of  law,  that  Samuel  Bigelow  could  not  be  summoned 
into  Court  for  that  purpose,  and  overruled  the  motion. 

Upon  the  question  whether  the  defendant  received  the  notice 
of  March,  1883,  the  defendant  asked  the  judge  to  rule  : 

"  I.  That  there  was  no  evidence  of  the  delivery  of  this  notice 
of  March  loth,  1883,  to  the  defendant. 

"  2.  That  the  presumption  of  the  delivery  of  a  letter  sent  post- 
paid through  the  mails  to  the  person  to  whom  it  is  addressed 
does  not  apply  to  a  case  where  the  letter  is  directed  to  a  place 
from  which  the  person  to  whom  it  is  addressed  has  removed." 

The  judge  declined  to  give  either  of  these  instructions,  and 
instructed  the  jury  that  there  was  a  presumption  that  a  letter 
sent  postpaid  through  the  mails  is  delivered  at  the  place  to 
which  it  is  addressed  ;  and  that  if  the  person  to  whom  it  is 
addressed  has  removed  from  that  place  and  has  informed  the 
postal  authorities  of  the  place  to  which  he  has  removed,  or  if 
the  authorities  otherwise  know  the  new  address,  it  is  a  presump- 
tion, in  the  absence  of  other  evidence,  that  the  letter  is  deliv- 
ered to  him  at  the  new  address  ;  but  that  this  was  simply  a 
presumption,  and  the  jury  were  to  consider  upon  the  whole 
evidence  whether  the  notice  was  received.  The  jury  were  further 
instructed  to  bring  in  a  verdict  for  the  plaintiff,  if  they  found 
that  the  defendant  received  that  notice  ;  otherwise,  for  the 
defendant. 

The  defendant  contended  that,  as  matter  of  law,  the  note  did 
not  bear  interest  from  its  date  at  the  rate  of  six  and  a  half  per 
cent,  and  asked  the  judge  so  to  rule,  which  he  refused  to  do  ; 
but  upon  the  question  of  the  amount  of  the  verdict,  if  for  the 
plaintiff,  he  instructed  the  jury,  that,  upon  the  question 
whether  interest  should  be  allowed  from  the  date  of  the  note, 
they  might  take  into  consideration  the  subsequent  acts  of  the 
parties,  and  if  they  were  satisfied  from  the  subsequent  dealings 
of  the  parties  with  reference  to  the  note  that  the  parties  inter- 
preted the  note  as  one  bearing  interest  from  its  date  and  acted 
upon  that  interpretation,  the  jury  would  be  warranted  in  reckon- 
ing interest  from  its  date.     The  defendant  excepted. 

The  jury  returned  a  verdict  for  the  plaintiff  for  the  balance 
due  on  the  note,  with  interest  from  its  date,  upon  which  judg- 
ment was  to  be  entered  if  the  rulings  and  refusals  to  rule  were 
correct. 

The  case  was  submitted  on  briefs  to  all  the  judges. 

J^.  B.  Kiernan  for  the  plaintiff. 

C.  W.  Turiiet-  &>  S.  J.  Elder  for  the  defendant. 


SEC.  I.]  MARSTON   V.    BIGELOW.  837 

Morton,  C.J.  The  defendant  offered  to  prove,  as  a  defence 
to  the  note  sued  on,  that  on  January  29th,  1879,  which  was  before 
the  note  matured,  his  father,  Samuel  Bigelow,  conv'^eyed  to  the 
plaintiff's  intestate  a  piece  of  land  ;  that  a  part  of  the  consid- 
eration, namely,  seventeen  hundred  and  seventy  dollars,  was 
paid,  and  endorsed  upon  this  note  ;  and  that  in  consideration 
thereof  the  plaintiff's  intestate  agreed  never  to  molest  or  trouble 
the  defendant  by  suit  for  the  balance  due  upon  the  note.  This 
is  not  an  offer  to  prove  a  satisfaction  and  discharge  of  the  note. 
Indeed,  such  a  defence  is  not  open  under  the  pleadings  ;  and 
the  evidence  shows  that  a  year  afterward  the  defendant  made  a 
payment  on  account  of  the  balance  due  on  the  note,  thus  recog- 
nizing it  as  an  existing  obligation.  It  was  merely  an  offer  to 
prove  a  collateral  promise  never  to  sue  the  note,  made  to  a 
stranger  who  is  not  a  party  to  the  note  or  to  this  suit.  Such  a 
promise,  made  upon  good  consideration  to  the  defendant  him- 
self, would  operate  to  defeat  the  suit.  Foster  v.  Purdy,  5  Met. 
442.  The  question  is  whether  the  defendant  can  avail  himself 
of  such  a  promise,  made  to  a  stranger,  as  a  defence  to  the  note. 
Unless  he  could  bring  a  suit  upon  such  contract,  he  cannot  use 
it  as  a  defence.  Different  rules  upon  this  subject  have  been 
adopted  and  acted  upon  by  different  courts.  But  in  this  Com- 
monwealth, as  is  stated  in  Exchange  Bank  v.  Rice,  107  Mass. 
37,  "  The  general  rule  of  law  is,  that  a  person  who  is  not  a 
party  to  a  simple  contract,  and  from  whom  no  consideration 
moves,  cannot  sue  on  the  contract,  and  consequently  that  a 
promise  made  by  one  person  to  another,  for  the  benefit  of  a 
third  person  who  is  a  stranger  to  the  consideration,  will  not 
support  an  action  by  the  latter.  And  the  recent  decisions  in 
this  Commonwealth  and  in  England  have  tended  to  uphold  the 
rule  and  to  narrow  the  exceptions  to  it."  The  subject  is  dis- 
cussed and  the  authorities  cited  in  Metcalf  on  Contracts,  205 
et  scq. 

The  defendant  contends  that,  by  a  recognized  exception  to 
this  rule,  a  son  may  sue  upon  a  promise  made  for  iiis  benefit  to 
his  father.  This  was  formerly  held  in  several  English  cases,  ' 
but  it  is  not  now  so  held  in  England.  The  only  case  in  this 
court  which  supports  the  defendant's  contention  is  Felton  v. 
Dickinson,  10  Mass.  287.  In  that  case  the  declaration  contained 
counts  in  indebitatus  assumpsit  for  two  hundred  dollars,  in  con- 
sideration of  work  and  labor  performed  for  the  defendant  by 
the  plaintiff  at  the  defendant's  request,  and  a  quantum  meruit 
for  the  same  work  and  labor.  The  evidence  at  the  trial  was. 
that  the  father  of  the  plaintiff,  when  the  latter  was  fourteen 
years  of  age,  placed  him  in  the  service  of  the  defendant,  upon 


838  MARSTON   V.    BIGELOW.  [CHAP.  III. 

an  agreement  that  the  plaintiff  was  to  remain  in  that  service 
until  he  should  be  of  age,  and  that  the  defendant  was  to  sup- 
port  him  during  that  time,  and  to  pa}'  him  two  hundred  dollars 
when  he  was  of  age.  Upon  the  peculiar  tacts  of  the  case,  v.e 
think  the  court  rightly  decided  that  the  son  could  maintain  the 
action.  The  agreement  of  the  father  operated  as  an  emancipa- 
tion of  the  son,  and  entitled  him  to  receive  the  wages  of  his 
labor.  Corey  v.  Corey,  19  Pick.  29.  The  consideration  of  the 
wages  he  was  to  receive  when  he  became  of  age  was  his  labor  ; 
and  it  may  well  be  held,  as  matter  of  law,  that  the  promise  to 
the  father  to  pay  the  son  a  stipulated  sum  was  made  to  the 
father  acting  on  behalf  of  and  as  the  agent  of  the  son,  and  thus 
a  promise  to  him.  The  agreement  was  not  an  independent 
agreement,  in  which  the  son  had  no  part  or  interest.  From  the 
nature  of  the  contract  he  was  a  privy  and  party  to  it.  He  had 
an  interest  in  it,  and  the  father  and  the  defendant  could  not, 
without  his  assent,  rescind  the  agreement  just  before  he  became 
of  age,  and  thus  defeat  his  rights  under  it.  The  court,  in  its 
opinion,  puts  the  decision  upon  the  broad  ground,  that,  "  when 
a  promise  is  made  to  one,  for  the  benefit  of  another,  he  for 
whose  benefit  it  is  made  may  bring  an  action  for  the  breach." 
But,  as  we  have  seen,  this  is  not  the  law  as  established  by  the 
later  decisions.  Exchange  Bank  v.  Rice,  107  Mass.  37,  and 
cases  cited. 

While  the  case  of  Felton  v.  Dickinson  was  rightly  decided 
upon  its  peculiar  circumstances,  we  think  it  cannot  be  fairly 
regarded  as  establishing  a  general  rule  that  a  son  may  sue  upon 
a  promise  made  for  his  benefit  to  his  father.  The  nearness  of 
the  relationship  may  be  evidence  that  the  promise  to  the  father 
was  made  to  him  acting  in  behalf  of,  and  as  the  agent  of,  the 
son,  and  therefore  was  a  promise  to  the  son  ;  but  when  it 
appears  that  the  promise  was  not  made  to  the  son,  and  that  the 
consideration  did  not  move  from  him,  we  can  see  no  reason  why 
the  nearness  of  the  relationship  should  change  the  general  rule 
of  law,  that  a  man  cannot  sue  upon  a  contract  to  which  he  is 
not  a  party  or  privy. 

In  the  case  at  bar  there  was  no  offer  to  prove  a  promise  to  the 
defendant  not  to  sue  ;  the  promise  is  set  out  in  the  pleadings 
and  in  the  offer  of  proof  as  a  promise  to  the  father  upon  a  con- 
sideration moving  wholly  from  him.  As  to  such  agreement, 
there  was  no  privity  of  contract  between  the  plaintiff's  intestate 
and  the  defendant.  The  only  contract  is  between  the  plaintiff 
and  Samuel  Bigelow,  and  they  may  at  any  time  revoke  and 
annul  it.  The  only  party  entitled  to  sue  the  plaintiff  upon  that 
contract,  either  at  law  or  in  equity,  is  Samuel  Bigelow.     The 


SEC.  I.]  GIFFORD   V.   CORRIGAN.  839 

case  falls  within  the  general  rule  of  law,  that  one  who  is  not  a 
party  to  a  contract  cannot  sue  upon  it.  As  the  defendant  could 
not  enforce  this  agreement  which  he  offered  to  prove,  either  in 
law  or  equity,  he  cannot  avail  himself  of  it  as  a  defence  in  this 
suit,  and  the  Superior  Court  rightly  rejected  the  evidence 
offered  by  him  to  prove  such  contract.' 
Judgment  on  the  verdict. 


SILAS   D.    GIFFORD,    as   Receiver,   etc..   Respondent,   v. 

MICHAEL   AUGUSTINE   CORRIGAN,  as  Executor, 

ETC.,  Appellant. 

In  the  Court  of  Appeals  of  New  York,  November  26,  1889. 
\^Reported  171  117  New  York  Reports  257.] 

Appeal  by  defendant  Corrigan,  as  executor  of  Cardinal  John 
McCloske)'',  deceased,  from  a  judgment  of  the  General  Term  of 
the  Supreme  Court  in  the  second  judicial  department,  entered 
upon  an  order  made  February  nth,  1889,  which  affirmed  a  judg- 
ment in  favor  of  plaintiff,  entered  upon  a  decision  of  the  Court 
on  trial  at  Special  Term. 

This  action  was  brought  to  foreclose  a  mortgage  executed  by 
defendant,  the  Father  Mathew  Temperance  Society.  Defend- 
ant Corrigan,  as  executor,  was  sought  to  be  charged  for  any 
deficiency  on  sale  upon  a  covenant  in  a  deed  of  the  mortgaged 
premises  executed  to  his  testator  by  John  McEvoy,  by  the  terms 
of  which  the  grantee  assumed  and  agreed  to  pay  the  mortgage. 
The  facts,  so  far  as  material  to  the  questions  discussed,  are 
stated  in  the  opinion. 

Edward  C.  Boardman  for  appellant. 

Ralph  E.  Priine  for  respondents. 

Finch,  J.  But  another  circumstance  introduces  an  additional 
defence  and  raises  a  further  question.^  Just  after  the  issue  of 
a  summons  in  this  action  and  the  filing  of  a  lis  pendens^  the  ex- 
ecutor of  McEvoy  formally  released  McCloskey  from  his  cove- 
nant, and  the  latter  pleads  that  release.  It  asserts  that  the 
deed  was  never  delivered,  which  is  found  to  be  an  untruth  ; 
that  the  assumption  clause  was  inserted  by  mistake  and  inad- 
vertence, of  which  there  is  not  a  particle  of  proof  ;  and  then  in 
further  consideration  of   $1  formally  releases  the  Cardinal  from 

1  Only  =0  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 
'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


840  GIFFORD    V.    CORRIGAN.  [CHAP.  III. 

his  covenant.  This  release  was  executed  after  the  knowledge 
of  the  deed  of  McCloskey  and  the  covenant  contained  in  it  had 
reached  the  mortgagee  ;  after  the  latter  had  accepted  and 
adopted  it  as  made  for  his  benefit  and  communicated  that  fact 
to  the  debtor  by  a  formal  demand  of  payment  ;  after  the  mort- 
gagee had,  for  three  years,  permitted  the  grantee  to  absorb  and 
appropriate  the  rents  and  profits  in  reliance  upon  the  cove- 
nant ;  and  after  he  had  commenced  an  action  for  foreclosure 
by  the  issue  of  a  summons  and  filing  of  a  lis  pendens,  at  a  moment 
when  the  executor  who  released  was  aware  that  trouble  was 
approaching,  but  before  McCloskey  was  actually  served  or  had 
appeared  in  the  action. 

Is  this  release  thus  executed  a  defence  to  this  action  ?  I  shall 
not  undertake  to  decide,  if,  indeed,  the  question  is  open  (Knick- 
erbocker Life  Ins.  Co.  v.  Nelson,  78  N.  Y.  137  ;  Comley  v. 
Dazian,  114  N.  Y.  161,  167),  whether  in  the  interval  between 
the  making  of  the  contract  and  the  acceptance  and  adoption  of 
it  by  the  mortgagee  it  was  or  was  not  revocable  without  his 
assent.  However  that  may  be,  the  only  inquiry  now  presented 
is,  whether  it  is  so  revocable  after  it  has  come  to  the  knowledge 
of  the  creditor,  and  he  has  assented  to  it  and  adopted  it  as  a 
security  for  his  own  benefit.  My  judgment  leads  me  to  answer 
that  question  in  the  negative. 

Of  course  it  is  difficult,  if  not  impossible,  to  reason  about  it 
without  recurring  to  Lawrence  v.  Fox,  20  N.  Y.  268,  and  ascer- 
taining the  principle  upon  which  its  doctrine  is  founded.  That 
is  a  difficult  task,  especially  for  one  whose  doubts  are  only  dis- 
sipated by  its  authority,  and  becomes  more  difficult  when  the 
number  and  variety  of  its  alleged  foundations  are  considered. 
But  whichever  of  them  may  ultimately  prevail,  I  am  convinced 
that  they  all  involve,  as  a  logical  consequence,  the  irrevocable 
character  of  the  contract  after  the  creditor  has  accepted  and 
adopted  it,  and  in  some  manner  acted  upon  it.  The  prevailing 
opinion  in  that  case  rested  the  creditor's  right  upon  the  broad 
proposition  that  the  promise  was  made  for  his  benefit,  and, 
therefore,  he  might  sue  upon  it,  although  privy  neither  to  the 
contract  or  its  consideration.  That  view  of  it  necessarily  in- 
volves an  acquisition  at  some  moment  of  time  of  the  right  of 
action  which  he  is  permitted  to  enforce.  If  it  be  possible  to 
say  that  he  does  not  acquire  it  at  the  moment  when  the  promise 
for  his  benefit  is  made,  it  must  be  that  he  obtains  it  when  it  has 
come  to  his  knowledge  and  he  has  assented  to  and  acted  upon 
it.  For  he  may  sue  ;  that  is  decided  and  conceded.  If  he 
may  sue,  he  must,  at  that  moment,  have  a  vested  right  of 
action.     If  it  was  not  obtained  earlier  it  must  have  vested  in 


SEC.  I.]  GIFFORD   1>.    CORRIGAN.  84I 

him  at  the  moment  when  his  action  was  commenced,  so  that 
the  right  and  the  remedy  were  born  at  the  same  instant.  But 
there  is  no  especial  magic  in  a  lawsuit.  If  it  serves  for  the 
first  time  to  originate  the  right  which  it  seeks  to  enforce,  it  can 
only  be  because  the  act  of  bringing  it  shows  unequivocally  that 
the  promise  of  the  grantee  has  come  to  the  knowledge  of  the 
plaintiff,  that  the  latter  has  accepted  and  adopted  it,  that  he 
intends  to  enforce  it  for  his  own  benefit,  and  gives  notice  of 
that  intention  to  the  adversary.  From  that  moment  he  must 
be  assumed  to  act  or  omit  to  act  in  reliance  upon  it.  But  if  all 
these  things  occur  before  a  suit  commenced,  why  do  they  not 
equally  vest  the  right  of  action  in  the  assignee  ?  What  more 
does  the  mere  lawsuit  accomplish  ?  And  so  the  contract  be- 
tween grantor  and  grantee,  if  revocable  earlier,  ceases  to  be  so 
when  by  his  assent  to  it  and  adoption  of  it  the  creditor  brings 
himself  into  privity  with  it  and  elects  to  avail  himself  of  it,  and 
must  be  assumed  to  have  governed  his  conduct  accordingly. 
I  see  no  escape  from  that  conclusion. 

But  two  of  the  judges  who  concurred  in  the  decision  of  Law- 
rence z'.  Fox  stood  upon  a  different  proposition.  They  held 
that  the  mortgagor  granting  the  land  accepted  the  grantee's 
covenant,  as  agent  of  the  mortgagee  who  might  ratify  the  act 
with  the  same  effect  as  if  he  had  originally  authorized  it. 
While  I  think  the  idea  of  such  an  agency  is  a  legal  fiction,  hav- 
ing no  warrant  in  the  facts,  yet  the  same  result  as  to  the  power 
of  revocation  follows.  While  the  agency  remained  unauthor- 
ized it  might  be  possible  to  change  the  transaction,  but  after 
the  ratification  the  promise  necessarily  becomes  one  made  to 
the  mortgagee,  through  his  agent,  the  mortgagor,  acting  law- 
fully in  his  behalf,  and  from  that  moment  cannot  be  altered  or 
released  without  his  sanction  and  consent. 

But  another  basis  for  the  action  has  been  asserted,  applicable, 
however,  only  to  cases  like  the  present,  where,  on  foreclosure 
of  the  mortgage,  its  owner  seeks  a  judgment  for  a  deficiency 
against  the  new  covenantor.  In  Burr  v.  Beers,  24  N.  Y.  179, 
and  again  in  Garnsey  ?'.  Rogers,  47  N.  Y.  242,  it  was  pointed 
out  that  the  liability  of  the  grantee  to  the  mortgagee  rested 
upon  the  equitable  right  of  subrogation,  and  had  been  recog- 
nized and  enforced  long  before  Lawrence  v.  Fox  made  its  ap- 
pearance. It  was  held  that  where  the  mortgagor  acquired  a 
new  security  for  his  indemnity  against  the  debt  which  he  owed 
to  the  mortgagee,  the  latter  might,  in  equity,  be  subrogated  to 
the  right  of  his  debtor,  and,  under  the  statute  permitting  any 
person  liable  for  the  mortgage  debt  to  be  made  defendant  and 
charged  with  a  deficiency  in  the  foreclosure,  the  new  covenant 


842  GIFFORD   V.   CORRIGAN.  [CHAP.  III. 

became  available  to  the  mortgagee.  It  was  so  held  in  Halsey  v. 
Reed,  9  Paige,  446,  and  the  right  of  the  mortgagee  was  put 
upon  the  equity  of  the  statute.  That,  if  a  sound  proposition, 
was  all  very  well  so  long  as  there  was  supposed  to  be  no  equiva- 
lent remedy  at  law,  but  after  the  decision  of  Lawrence  v.  Fox 
that  remedy  existed.  And  so  in  Thorp  v.  Keokuk  Coal  Com- 
pany, 48  N.  Y.  258,  the  Court  said  that  it  saw  no  reason  for 
invoking  the  doctrine  of  equitable  subrogation,  or  resting  upon 
it  in  such  a  case.  When  the  law  has  absorbed,  in  a  broader 
equity,  the  narrow  one  enforced  in  chancery,  the  form  and 
measure  of  the  latter  ceases  to  be  of  consequence.  One  does 
not  seek  to  trace  the  river  after  it  has  lost  itself  in  the  lake. 
And  so  I  think  the  suggestion  is  well  founded.  But  if  I  am 
wrong  about  that,  as,  perhaps,  I  may  prove  to  be,  and  the  right 
of  the  present  plaintiff  against  the  Cardinal's  estate  does  stand 
upon  the  doctrine  of  equitable  subrogation,  still  I  think  the 
same  result  follows.  When  does  that  equitable  right  arise  and 
become  vested  in  the  creditor  ?  It  would  seem  that  it  must  be 
when  the  situation  is  created  out  of  which  the  equity  is  born. 
If  it  be  possible  to  adjourn  it  to  a  later  period,  it  must  certainly 
attach  when  the  creditor  asserts  his  right  to  it  and  notifies  the 
other  party  of  his  intention  to  rely  upon  it.  As  a  right,  founded 
upon  the  equity  of  the  statute,  it  must  have  come  into  being 
before  the  foreclosure  suit  was  commenced,  for  the  permission 
reads,  "  any  person  who  is  liable  to  the  plaintiff  for  the  pay- 
ment of  the  debt  secured  by  the  mortgage  may  be  made  a  de- 
fendant in  the  action."  His  liability  must  precede  the  com- 
mencement of  the  action.  It  must  exist  as  a  condition  of  his 
being  sued  at  all  ;  and  so,  assuming  that  this  action  can  be 
maintained  against  him  upon  his  promise,  the  right  of  action 
must  have  arisen  at  once  upon  the  delivery  of  the  deed,  or  at 
the  latest  when  the  promise  came  to  the  knowledge  of  the 
creditor,  and  he  assented  to  and  adopted  it. 

I  have  been  quite  favorably  impressed  with  a  fourth  sugges- 
tion respecting  the  basis  of  these  rights  of  action  which  appears 
in  the  opinion  of  Andrews,  J.,  rendered  when  this  case  was 
before  us  on  a  previous  appeal.  "  After  all,"  he  says,  "  does 
not  the  direct  right  of  action  rest  upon  the  equity  of  the  trans- 
action ?"  If  we  discard  the  fictitious  theory  of  an  agency,  what 
remains  is  the  equitable  right  of  subrogation  swallowed  up  in 
the  greater  equity  of  the  legal  right  founded  on  the  theory  of  a 
promise  made  for  the  benefit  of  the  creditor.  It  is  no  new 
thing  for  the  law  to  borrow  weapons  from  the  arsenal  of  equity. 
The  action  for  money  had  and  received  is  a  familiar  illustra- 
tion.    May  we  not  deem  this  another  ?     If  we  do,  and  the  door 


SEC.  I.]  SAUNDERS   V.    SAUNDERS   ct  al.  843 

is  thus  opened  wide  to  equitable  considerations,  I  am  quite  sure 
it  will  follow  that  while  no  right  of  the  mortgagee  is  invaded 
by  a  change  of  the  contract  before  it  is  brought  to  his  knowl- 
edge, and  he  has  assented  to  it  and  acted  upon  it,  yet  to  permit 
a  change  thereafter,  while  the  creditor  is  relying  upon  ifwould 
be  grossly  inequitable  and  practically  destroy  the  right  which 
has  maintained  itself  after  so  long  a  struggle. 

It  seems  to  me,  therefore,  that  however  we  may  reasonably 
differ  as  to  the  doctrine  underlying  the  plaintiff's  right  of 
action,  yet  all  the  roads  lead  to  the  one  result  that  upon  the 
facts  of  this  case  the  release  to  McCloskey  was  wholly  ineffectual. 

The  judgment  should  be  affirmed  with  costs. 

All  concur  except  Danforth  and  Peckham,  JJ.,  dissenting. 

Judgment  affirmed. 


SAUNDERS  V.  SAUNDERS  et  al. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
September  3,  1891. 

^Reported  in  154  Massachusetts  Reports  337.3 

Contract  for  breach  of  an  agreement  under  seal.  The  case 
was  submitted  to  the  Superior  Court,  upon  an  agreement  that, 
if  the  plaintiff  was  not  entitled  to  maintain  her  action,  judg- 
ment was  to  be  entered  for  the  defendant.  Pitman,  J.,  ordered 
judgment  for  the  defendant,  and  the  plaintiff  appealed  to  this 
Court.     The  facts  appear  in  the  opinion. 

The  case  was  submitted  on  briefs  in  January,  1891,  and  after- 
ward, in  September  following,  was  submitted  on  the  same 
briefs  to  all  the  judges. 

W.  D.  Northend  for  the  plaintiff. 

C.  Sewall  for  the  defendant. 

Morton,  J.  This  action  is  brought  by  the  plaintiff  upon  an 
instrument  under  seal,  to  which  she  is  not  a  party,  and  of  which 
none  of  the  consideration  moved  from  her.  The  instrument  is 
signed  by  Charles  F.  Saunders,  the  defendant,  and  is  between 
him  and  George  M.  Saunders,  who  together,  and  the  survivor 
of  them,  were  entitled  to  the  income  of  a  trust  fund.  The  con- 
sideration is  $1  paid  by  said  George  M.  Saunders,  and  like 
covenants  on  the  part  of  said  George  with  said  Charles  to  those 
contained  in  the  instrument  declared  on.  The  covenants  or 
agreements  in  the  instrument  relied  on  are  as  follows  :  "  I,  the 
said  Charles  F.  Saunders,  do  hereby  covenant  and  agree  to  and 


844  SAUNDERS   V.    SAUNDERS   Ct   al.  [cHAP.  III. 

with  the  said  George  M.  Saunders,  and  to  and  with  iuch  person 
as  may  be  the  wife  of  said  George  M.  Saunders  at  the  time  of 
his  decease,  that  if  the  said  George  M.  shall  die  in  my  lifetime, 
leaving  a  widow  living,  I  will,  from  and  after  the  decease  of 
said  George  M.,  and  during  my  lifetime,  pay  over  to  such  per- 
son as  may  be  the  widow  of  said  George  M.,  one  third  of  the 
entire  income  aforesaid  to  which  I  may  be  entitled  as  such  sur- 
vivor." The  plaintiff  is  the  widow  of  George,  and  it  is  clear 
that,  so  far  as  she  relies  upon  the  covenants  and  agreements 
made  between  her  husband  and  the  defendant  for  her  benefit, 
they  will  not  support  this  action.  It  is  well  settled  in  this 
State,  in  regard  to  simple  contracts,  that  "  a  person  who  is  not 
a  party  to  a  simple  contract,  and  from  whom  no  consideration 
moves,  cannot  sue  on  the  contract,  and  consequently  that  a 
promise  made  by  one  person  to  another,  for  the  benefit  of  a 
third  person  who  is  a  stranger  to  the  consideration,  will  not 
support  an  action  by  the  latter."  Exchange  Bank  v.  Rice, 
107  Mass.  37,  and  cases  cited.  Rogers  v.  Union  Stone  Co., 
130  Mass.  581  ;  New  England  Dredging  Co.  v.  Rockport  Gran- 
ite Co.,  149  Mass.  381  ;  Marston  v.  Bigelow,  150  Mass.  45.  In 
regard  to  contracts  under  seal,  the  law  has  always  been  that 
only  those  who  were  parties  to  them  could  sue  upon  them. 
Sanders  v.  Filley,  12  Pick.  554  ;  Johnson  v.  Foster,  12  Met.  167  ; 
Northampton  v.  Elwell,  4  Gray,  81  ;  Flynn  v.  North  American 
Ins.  Co.,  115  Mass.  449  ;  Flynn  v.  Massachusetts  Benefit  Asso- 
ciation, 152  Mass.  288.  The  case  of  Felton  v.  Dickinson,  10 
Mass.  287,  to  which  this  case  would  seem  to  be  somewhat 
analogous,  is  fully  explained  in  Marston  v.  Bigelow,  ubi  supra, 
and  is  authority  only  to  the  extent  there  indicated.' 

'  It  is  to  be  observed  that  the  instrument  executed  by  the  city  to  the  State 
is  not  a  bond.  The  city  is  not  bound  in  a  penalty,  from  which  it  may  be 
discharged  on  the  performance  of  a  condition.  So  that  the  case  of  Turk  v. 
Ridge,  2  Hand,  206,  is  not  applicable.  The  instrument  is  an  agreement  of 
the  city,  under  its  corporate  seal,  with  the  State,  for  the  protection  and 
indemnity  of  the  State,  and  the  payment  of  all  damages  caused  to  property, 
and  by  it  the  city  doth  in  terms  assume  all  liability  therefor.  In  considera- 
tion that  the  State  would  do  this  work,  and  in  view  of  the  certain  result, 
that  damage  must  be  done  to  property  in  the  doing  of  it,  the  city  makes  to 
the  State  this  promise,  that  it  will  pay  that  damage.  Here  is  the  promise, 
the  consideration  and  the  promisee,  definitely  brought  out.  The  ultimate 
beneficiary  is  uncertain.  It  is  settled  in  this  State  that  an  agreement  made 
on  a  valid  consideration,  by  one  with  another,  to  pay  money  to  a  third,  can 
be  enforced  by  the  third  in  his  own  name.  Lawrence  v.  Fox,  20  N.  Y. 
268  ;  Secor  v.  Lord,  3  Keyes,  525.  And  though  a  distinction  has  sometimes 
been  made  in  favor  of  a  simple  contract  (Hall  v.  Marston,  17  Mass.  575  ; 
D.  &  H.  Canal  Co.  7/.  W.  Co.  Bank,  4  Den.  97),  it  is  now  held  that  when  the 
agreement  is  in  writing,  and  under  seal,   the  same  rule   prevails.      Van 


SEC.  I.J  SAUNDERS   V.    SAUNDERS   et  al.  845 

It  is  suggested,  however,  that,  somewhat  after  the  analogy 
furnished  by  letters  of  credit,  the  plaintiff  may  avail  herself  of 
so  much  of  the  covenants  and  agreements  as  purports  to  be 
made  "  to  and  with  such  person  as  may  be  the  wife  of  said 
.George  M.  Saunders  at  the  time  of  his  decease" — that  is,  that 
this  covenant  amounts  to  a  promise  on  the  part  of  the  defendant 
to  whomsoever  may  be  the  wife  of  George  M.  Saunders  at  his 
death,  that  he  will  pay  her  annually  thereafter  a  certain  sum  so 
long  as  he  shall  live,  and  that  the  plaintiff,  being  the  wife  of 
said  George,  may  therefore  maintain  an  action  upon  it.  But  it 
is  to  be  observed  that  the  covenant  did  not  purport  to  create  a 
present  agreement  with  the  person  who  was  the  wife  of  George 
at  the  time  the  agreement  between  him  and  the  defendant  was 
executed  ;  neither  does  it  purport  to  be  a  continuing  offer  or 
promise  on  the  part  of  the  defendant,  as  in  the  case  of  a  letter 
of  credit  or  an  offer  of  reward,  that,  if  the  person  who  shall  be 

Schaick  v.  Third  Av.  R.  R.,  38  N.  Y.  346  ;  Ricard  v.  Sanderson,  2  Hand, 
179.  Nor  need  the  third  person  be  privj^  to  the  consideration.  Secor  v. 
Lord,  supra.  Nor  need  he  be  named  especially  as  the  person  to  whom  the 
money  is  to  be  paid.  In  that  class  of  cases,  which  holds  that  a  grantee  of 
mortgaged  premises,  who  takes  them  subject  to  the  lien  of  the  mortgage, 
which,  by  words  in  the  deed  of  conveyance  to  him,  he  assumes  to  pay,  is 
personally  liable  to  the  holder  of  the  mortgage,  for  the  amount  of  the  mort- 
gage debt,  no  question  seems  to  be  made  ;  but  that  the  action  may  be  main- 
tained in  the  holder's  name,  though  the  agreement  be  not  made  immedi- 
ately for  the  benefit  of  the  plaintiff,  nor  he  be  named  in  the  deed.  Thus 
in  Burr  v.  Beers,  24  N.  Y.  178,  the  clause  in  the  deed  described  the  mort- 
gages as  held  by  John  Cramer,  which  mortgages  the  grantee  thereby 
assumed  to  pay.  And  the  case  last  cited  was  not  an  action  in  equity,  for 
the  foreclosure  of  the  mortgage,  in  which  the  mortgagor  and  his  grantee 
were  both  parties.  (See  page  179.)  It  was  an  action  to  recover  a  personal 
judgment  against  the  grantee.  The  question  was  distinctly  raised,  that 
there  was  no  privity  of  contract  between  the  plaintiff  and  defendant.  And 
the  decision  against  the  defendant  was  put  in  the  language  of  Denio,  J., 
"  upon  the  broad  principle  that  if  one  person  make  a  promise  to  another  for 
the  benefit  of  a  third  person,  that  third  person  may  maintain  an  action  on 
the  promise." — Folger,  J.,  Coster  v.  Mayor  of  Albany,  43  N.  Y.  399,  410-412. 
It  is  claimed  that  the  parties  for  whose  benefit  a  contract  is  made  may  sue 
thereon  in  their  own  names,  although  the  agreement  may  not  be  to  or  with 
them.  That  is  the  rule  with  reference  to  simple  contracts,  but  not  in  re- 
spect to  contracts  under  seal.  The  rule  is,  that  a  covenant  cannot  be  sued 
upon  by  the  person  for  whose  benefit  it  is  made,  if  he  is  not  a  party  to  the 
deed,  but  the  suit  must  be  brought  in  the  name  of  the  person  with  whom 
the  covenant  is  made.  Moore  v.  House,  64  111.  162  ;  Gautzert  v.  Hoge, 
73  111.  30.  That  rule  was  not  abrogated  by  §  19  of  the  presert  Practice  act. 
Said  section  provides  :  "  Any  deed,  bond,  note,  covenant,  or  other  instru- 
ment under  seal,  except  penal  bonds,  may  be  sued  and  declared  upon  or 
set  off  as  heretofore,  or  in  any  form  of  action  in  which  such  instrument 
might  have  been  sued  and  declared  upon  or  set  off  if  it  had  not  been  under 
seal,  and  demands  upon  simple  contracts  may  be  set  off  against  demands 


846  SAUNDERS   V.    SAUNDERS   ei  al.  [CHAP.  Ill, 

the  wife  of  George  at  the  time  of  his  decease  shall  do  certain 
things,  then  the  defendant  will  pay  her  a  certain  sum.  On  the 
contrary,  it  was  an  attempt  to  create  a  covenant  to  arise  wholly 
in  the  future  between  the  defendant  and  a  party  who  at  the 
time  was  unascertained,  and  from  whom  no  consideration  was 
to  move,  and  who  was  not  in  any  way  privy  to  the  contract 
between  the  defendant  and  said  George.  We  do  not  think  this 
can  be  done. 

The  question  whether  the  administrator  or  executor  of  the 
husband  of  the  plaintiff  may  not  maintain  an  action  on  the 
agreement  for  her  benefit,  or  whether  she  may  not  herself  bring 
suit  in  the  name  of  the  executor  or  administrator,  has  not  been 
argued  to  us,  and  we  have  not  therefore  considered  it.  For 
these  reasons  a  majority  of  the  Court  think  that,  according  to 
the  agreement,  the  entry  must  be,  judgment  for  the  defendant. 

upon  sealed  instruments,  judgments  or  decrees."  The  only  changes  made 
in  the  law  by  this  statute  were  to  extend  the  right  of  set-off,  and  to  allow 
recovery  upon  sealed  instruments  in  forms  of  action  other  than  those 
wherein  such  recovery  might  have  been  had  prior  to  that  statute.  It  did 
not  purport  to  abolish  all  distinctions  between  sealed  and  unsealed  instru- 
ments, or  to  give  a  right  of  action  that  did  not  theretofore  exist,  but  merely 
provided  additional  forms  of  action  for  the  enforcement  of  rights  predicated 
upon  such  sealed  instruments.  In  Protection  Life  Ins.  Co.  v.  Palmer, 
81  111.  88,  this  Court  said:  "This  section  has  abolished  the  distinction 
between  sealed  and  unsealed  instruments  as  to  the  form  of  action."  And 
in  Adam  v.  Arnold,  86  111.  185,  said  :  "  Since  the  Act  of  1872  the  distinction 
between  sealed  and  unsealed  instruments,  as  to  the  form  of  action  to  be 
brought  upon  them,  has  been  abolished."  The  language  used  in  Dean  v. 
Walker,  107  111.  540,  to  the  effect  that  since  the  passage  of  the  act  it  is  im- 
material for  the  purpose  of  bringing  a  suit  by  a  third  person  upon  a  pro- 
vision for  his  benefit  in  a  contract  made  between  other  persons,  whether 
such  contract  is  under  seal  or  not,  is  mere  obiter  dictum,  as  that  question 
was  not  there  involved. — Baker,  J.,  Harms  et  al.,  v.  McCormick  et  al., 
\y2,  111.  104,  109-110. 

It  is  also  argued,  as  Mansfield's  name  does  not  appear  in  the  letters  of 
Hendrick,  that  he  could  not  join  in  this  action.  This  would  be  true  if  the 
promise  were  under  seal,  requiring  an  action  of  debt  or  covenant ;  but  the 
right  of  a  party  to  maintain  assuitipsit  on  a  promise  not  under  seal,  made 
to  another  for  his  benefit,  although  much  controverted,  is  now  the  prevail- 
ing rule  in  this  country.— Davis,  J.,  Hendrick  v.  Lindsay  et  al.,  93  U.  S. 
143,  149.— Ed. 


SEC.  I.]  DURNHERR   t'.    RAU.  847 


BENEDICTA  DURNHERR,  Appellant,  v.  JOSEPH  RAU, 

Respondent. 

In  the  Court  of  Appeals  of  New  York,  October  4,  1892. 
\^Reported  in  135  New  York  Reports  219.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme 
Court  in  the  fifth  judicial  department,  made  June  2d,  1891, 
which  affirmed  an  order  entered  upon  the  minutes,  setting  aside 
a  verdict  in  favor  of  plaintiff  and  granting  a  new  trial. 

This  was  an  action  to  recover  damages  for  an  alleged  breach 
of  covenant  in  a  deed  from  Emanuel  Durnherr,  plaintiff's  hus- 
band, to  defendant. 

The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

Theodore  Bacon  for  appellant. 

William  E.  Edmonds  for  respondent. 

Andrews,  J.  The  deed  from  Emanuel  Durnherr  to  the  de- 
fendant recited  that  it  was  given  in  payment  of  a  debt  owing 
by  the  grantor  to  the  grantee  of  $660,  "  and  the  further  consid- 
erations expressed  herein."  The  grantee  covenanted  in  the 
deed  to  pay  all  incumbrances  on  the  premises  "  by  mortgage 
or  otherwise."  This  constitutes  the  only  "further  considera- 
tion" on  his  part  expressed  therein.  The  deed  also  declared 
that  the  wife  of  the  grantor  (the  plaintiff)  reserved  her  right  of 
dower  in  the  premises.  The  conveyance  contained  a  covenant 
of  general  warranty  by  the  grantor,  and  the  only  legal  opera- 
tion of  the  clause  respecting  the  dower  of  the  wife  was  to  limit 
the  scope  of  the  warranty  by  excluding  therefrom  her  dower 
right.  By  the  foreclosure  of  the  mortgages  on  the  premises 
existing  at  the  time  of  the  conveyance,  in  which  (as  is  assumed) 
the  wife  joined,  the  title  has  passed  to  purchasers  on  the  fore- 
closure, and  the  inchoate  right  of  dower  in  the  wife  has  been 
extinguished.  This  action  is  brought  by  the  wife  on  the  de- 
fendant's covenant  in  the  deed,  and  she  seeks  to  recover  as 
damages  the  value  of  her  inchoate  right  of  dower,  which  was 
cut  off  by  the  foreclosure. 

The  courts  below  denied  relief,  and  we  concur  in  their  con- 
clusion. The  covenant  was  with  the  husband  alone.  He  had 
an  interest  in  obtaining  indemnity  against  his  personal  liability 
for  the  mortgage  debts,  and  this,  presumably,  was  his  primary 
purpose  in  exacting  from  the  grantee  a  covenant  to  pay  the 
mortgages.  The  cases  also  attribute  to  the  parties  to  such  a 
covenant  the  further  purpose  of  benefiting  the  holder  of  the 


848  DURNIIERR   V.    RAU.  [CHAP.  III. 

securities,  and  -he  natural  scope  of  the  covenant  is  extended  so 
as  to  give  them  a  right  of  action  at  law  on  the  covenant,  in  case 
of  breach,  as  though  expressly  named  as  covenantees.  Burr  v. 
Beers,  24  N.  Y.  178.  But  the  wife  was  not  a  party  to  the  mort- 
gages, and  in  no  way  bound  to  pay  them.  She  had  an  interest 
that  they  should  be  paid  without  resort  to  the  land,  so  that  her 
inchoate  right  of  dower  might  be  freed  therefrom.  The  hus- 
band, however,  owed  her  no  duty  enforcible  in  law  or  equity  to 
pay  the  mortgages  to  relieve  her  dower.  The  most  that  can  be 
claimed  is  that  the  mortgages  having  (as  is  assumed)  been  exe- 
cuted to  secure  his  debts,  and  he  having  procured  the  wife  to 
join  in  them  and  pledge  her  right  for  their  payment,  he  owed 
her  a  moral  duty  to  pay  the  mortgages,  and  thereby  restore 
her  to  her  original  situation.  But  according  to  our  decisions 
no  legal  or  equitable  obligation,  of  which  the  law  can  take  cog- 
nizance, was  created  in  favor  of  the  wife  against  the  husband 
or  his  property  by  these  circumstances.  She  was  not  in  the 
position  of  a  surety  for  her  husband.  Her  joinder  in  the  mort- 
gages was  a  voluntary  surrender  of  her  right  for  the  benefit  of 
the  husband,  and  bound  her  interest  to  the  extent  necessary  to 
protect  the  securities.  Manhattan  Co.  v.  Evertson,  6  Pai.  467  ; 
Hawley  v.  Bradford,  9  Pai.  200.  There  is  lacking  in  this  case 
the  essential  relation  of  debtor  and  creditor  between  the  grantor 
and  a  third  person  seeking  to  enforce  such  a  covenant,  or  such 
a  relation  as  makes  the  performance  of  the  covenant  at  the  in- 
stance of  such  third  person  a  satisfaction  of  some  legal  or 
equitable  duty  owing  by  the  grantor  to  such  person,  which 
must  exist  according  to  the  cases  in  order  to  entitle  a  stranger 
to  the  covenant  to  enforce  it.  It  is  not  sufficient  that  the  per- 
formance of  the  covenant  may  benefit  a  third  person.  It  must 
have  been  entered  into  for  his  benefit,  or  at  least  such  benefit 
must  be  the  direct  result  of  performance  and  so  within  the  con- 
templation of  the  parties,  and  in  addition  the  grantor  must 
have  a  legal  interest  that  the  covenant  be  performed  in  favor  of 
the  party  claiming  performance.  Garnsey  v.  Rogers,  47  N.  Y. 
233  ;  Vrooman  v.  Turner,  69  N.  Y.  280  ;  Lorillard  v.  Clyde, 
122  N.  Y.  498.  The  application  of  the  doctrine  of  Lawrence  v. 
Fox,  20  N.  Y.  268,  to  this  case  would  extend  it  much  further 
than  hitherto,  and  this  cannot  be  permitted  in  view  of  the  re- 
peated declarations  of  the  Court  that  it  should  be  confined  to 
its  original  limits. 

The  order  should  be  affirmed,  and  judgment  absolute  ordered 
for  the  defendant  with  costs. 

All  concur. 

Order  affirmed  and  judgment  accordingly. 


SEC.  I.]     BORDEN  AND  ANOTHER  V.    BOARDMAN.       849 


CLARA    H.   BORDEN  and  Another  v.  JOHN  W. 
BOARDMAN. 

In  the  Supreme  Judicial  Court  of  Massachusetts, 
November  25,  1892. 

[Reported  in  157  Massachusetts  Reports  410.] 

Contract.  Trial  in  the  Superior  Court,  before  Braley,  J., 
who  reported  tlie  case  for  the  determination  of  this  Court  in 
substance  as  follows  : 

On  July  24th,  1890,  Daniel  J.  Collins,  a  contractor,  made  a 
contract  in  writing  with  the  defendant  to  build  him  a  house  in 
New  Bedford,  for  the  sum  of  $2650,  payable  one  half  when  the 
house  was  ready  for  plastering,  the  balance  when  finished. 
The  defendant  advanced  to  Collins  $200  before  the  first  pay- 
ment was  due,  taking  his  receipt  therefor.  During  the  prog- 
ress of  the  work,  and  before  the  first  payment  became  due 
according  to  the  terms  of  the  contract,  the  building  was  blown 
off  the  foundation.  Collins  employed  the  plaintiffs,  who  were 
building  movers,  to  put  the  building  back,  under  an  agreement 
that  it  should  not  cost  more  than  $150  ;  the  plaintiffs  put  the 
building  back,  finishing  the  moving  a  month  or  six  weeks  prior 
to  the  first  payment.  Collins  then  proceeded  with  the  work, 
and  got  the  building  ready  to  plaster.  When  the  time  for  the 
first  payment  arrived  the  defendant  told  Collins  he  would  like 
to  have  all  persons  who  had  lienable  bills  against  the  house 
present  to  see  that  they  were  paid.  The  plaintiffs  were  not 
present,  so  the  defendant  asked  Collins  how  much  was  due 
them,  and  was  told  $150.  The  defendant  thereupon,  at  the 
request  and  with  the  consent  of  Collins,  reserved  $200  for  the 
plaintiffs,  saying  he  would  hold  this  money  to  pay  them  with, 
and  would  pay  them  himself.  Collins  thereupon  gave  the  de- 
fendant a  receipt  for  $1125,  as  first  payment  on  the  house. 
Neither  Collins  nor  the  defendant  informed  the  plaintiffs  of  the 
holding  of  this  money,  but  in  consequence  of  what  a  third  per- 
son told  Manchester,  one  of  the  plaintiffs,  Manchester  called 
upon  the  defendant,  and  said  to  him,  "  I  understand  that  you 
are  holding  my  money  for  me  for  moving  that  building  back. 
Is  that  so  ?"  Boardman  replied  that  it  was.  Manchester  then 
said,  "  I  am  glad  that  you  have  got  it  and  will  pay  it."  Board- 
man  said,  "  I  don't  know  as  I  will  now,  I  have  been  advised 
not  to."  No  other  interview  was  had  between  the  plaintiffs 
and  the  defendant. 


850  BORDEN   AND   ANOTHER   V.    BOARDMAN.    [CHAP.  III. 

The  defendant  claimed  that,  upon  this  evidence,  the  action, 
could  not  be  maintained,  and  offered  to  show,  in  bar  of  the 
action,  that,  a  day  or  so  after  the  time  of  the  first  payment, 
Collins  abandoned  and  broke  his  said  contract,  and  the  defend- 
ant was  obliged  to  finish  the  building  at  a  loss,  and  that  at  the 
time  of  refusing  to  pay  Manchester,  he,  Manchester,  was  told 
by  the  defendant  that  Collins  had  broken  his  contract  ;  and 
that  on  December  9th,  1890,  after  refusal  to  pay  them  by  the 
defendant,  the  plaintiffs  commenced  an  action  against  said 
Collins  for  the  recovery  of  the  claim  now  in  suit.  The  evidence 
was  excluded.  The  judge  directed  a  verdict  for  the  plaintiffs 
for  $150,  and  interest  from  the  date  of  the  writ.  If  the  ruling 
was  right,  then  judgment  was  to  be  entered  on  the  verdict  ; 
otherwise,  judgment  for  the  defendant. 

F.  A.  Milliken  for  the  defendant. 

E.  L.  Barney  for  the  plaintiffs. 

Morton,  J.  The  evidence  offered  in  bar  was  rightly  ex- 
cluded. The  subsequent  failure  of  Collins  to  perform  his  con- 
tract would  not  release  the  defendant  from  the  obligation,  if 
any,  which  he  had  assumed  to  the  plaintiffs,  in  the  absence  of 
any  agreement,  express  or  implied,  that  the  money  was  to  be 
paid  to  the  plaintiffs  only  in  case  Collins  fulfilled  his  contract. 
Cook  V.  Wolfendale,  105  Mass.  401.  There  was  no  evidence  of 
such  an  agreement. 

The  other  question  is  more  difficult.  The  case  does  not  pre- 
sent a  question  of  novation,  for  there  was  no  agreement  among 
the  plaintiffs,  Collins,  and  the  defendant  that  the  defendant 
should  pay  to  the  plaintiffs,  out  of  the  money  in  his  hands  and 
due  to  Collins,  a  specific  sum,  and  that  thenceforward  the  de- 
fendant should  be  released  from  all  liability  for  it  to  Collins, 
and  should  be  liable  for  it  to  the  plaintiffs.  Neither  was  there 
any  agreement  between  the  plaintiffs  and  the  defendant  that 
the  latter  would  pay  the  money  to  them.  The  conversation 
between  one  of  the  plaintiffs  and  the  defehdant  cannot  be  con- 
strued as  affording  evidence  of  such  an  agreement.  Coupled 
with  the  defendant's  admission  that  he  was  holding  money  for 
the  plaintiffs  was  his  repudiation  of  any  liability  to  the  plaintiffs 
for  it.  Neither  can  it  be  claimed  that  there  was  an  equitable 
assignment  of  the  amount  in  suit  from  Collins  to  the  plaintiffs. 
There  was  no  order  or  transfer  giren  by  him  to  them  ;  nor  was 
any  notice  of  the  arrangement  between  him  and  the  defendant 
given  by  him  to  the  plaintiffs.  Lazarus  v.  Swan,  147  Mass. 
330.  The  case  upon  this  branch,  therefore,  reduced  to  its  sim- 
plest form,  is  one  of  an  agreement  between  two  parties,  upon 
sufficient  consideration  it  may  be  between  them,  that  one  will 


SEC.  I.]  BARNES  V.  HEKLA  FIRE  INSURANCE    CO.  85 1 

pay,  out  of  funds  in  his  hands  belonging  to  the  other,  a  specific 
sum  to  a  third  person,  who  is  not  a  party  to  the  agreement,  and 
from  whom  no  consideration  moves.  It  is  well  settled  in  this 
State  that  no  action  lies  in  such  a  case  in  favor  of  such  third 
.party  to  recover  the  money  so  held  of  the  party  holding  it. 
Exchange  Bank  v.  Rice,  107  Mass.  37,  and  cases  cited.  Rogers  v. 
Union  Stone  Co.,  130  Mass.  581  ;  New  England  Dredging  Co.  v. 
Rockport  Granite  Co.,  149  Mass,  381  ;  Marston  v.  Bigelow, 
150  Mass,  45  ;  Saunders  v.  Saunders,  154  Mass.  337,  Certain 
exceptions  which  were  supposed  to  exist  have  either  been  shown 
not  to  exist,  or  have  been  confined  within  narrower  limits. 
Exchange  Bank  v.  Rice  and  Marston  v.  Bigelow,  ubi  supra. 

We  have  assumed  that  the  sum  which  the  defendant  agreed 
with  Collins  to  pay  the  plaintiffs  was  specific.  But  it  is  to  be 
observed  that  the  agreement  between  the  plaintiffs  and  Collins 
was  that  it  should  not  cost  more  than  $150  to  put  the  building 
back.  Collins  told  the  defendant  that  that  sum  was  due  to  the 
plaintiffs.  The  defendant  reserved  $200.  It  may  well  be 
doubted,  therefore,  whether  the  defendant  had  in  his  hands  a 
specific  sum  to  be  paid  to  the  plaintiffs,  or  whether  he  agreed 
with  Collins  to  hold  and  pay  the  plaintiffs  a  specific  sum.  If 
the  sum  was  not  specific,  the  plaintiffs  do  not  claim,  as  we 
understand  them,  that  they  can  recover. 

Judgment  for  the  defendant. 


S.  M.  BARNES  v.   HEKLA    FIRE    INSURANCE 
COMPANY. 

In  the  Supreme  Court  of  Minnesota,  December  29,  1893. 
[Reported  in  56  Mmiiesota  Reports  38.] 

Appeal  by  defendant,  the  Hekla  Fire  Insurance  Company  of 
St.  Paul,  from  an  order  of  the  District  Court  of  Ramsey  County, 
John  W.  Willis,  J.,  made  May  15th,  1893,  sustaining  a  demurrer 
to  its  second  and  third  answers  in  the  action. 

The  complaint  of  Mrs.  S,  M,  Barnes  stated  that  on  April  loth, 
1891,  defendant  insured  her  house  at  Jonesboro,  N.  C,  for 
three  years  against  fire  in  the  sum  of  $1500,  that  the  house  was 
burned  on  March  nth,  1892,  that  she  had  given  notice  and  fur- 
nished proofs,  but  had  not  been  paid,  and  she  asked  judgment 
for  the  $1500. 

The  defendant  answered  admitting  the  insurance  and  the  fire, 


852  BARNES  V.  HEKLA  FIRE  INSURANCE   CO.     [cHAP,  III. 

but  denying  any  knowledge  as  to  the  other  facts  alleged.  For 
a  second  answer  defendant  alleged  that  the  plaintiff  was  and  is 
a  citizen  and  resident  of  North  Carolina  and  not  of  Minnesota, 
and  that  the  District  Court  has  no  jurisdiction  of  the  parties  to 
the  action  or  of  the  subject-matter  thereof.  For  a  third  answer 
defendant  alleged  that  the  St.  Paul  German  Insurance  Com- 
pany reinsured  the  property  and  agreed  with  the  plaintiff  and 
defendant  before  the  fire  to  pay  plaintiff  any  loss  she  might 
suffer  under  the  policy.  That  the  St.  Paul  German  Insurance 
Company  thereafter  on  April  14th,  1892,  being  insolvent,  made 
an  assignment  of  all  its  property  under  Laws  1881,  ch.  148  as 
amended,  to  Jacob  F.  Franzen  in  trust  for  its  creditors  and  that 
plaintiff  proved  and  filed  her  claim  against  it  with  him  for  pay- 
ment in  the  due  course  of  the  insolvency  proceedings. 

The  plaintiff  demurred  to  the  second  and  third  answers  and 
specified  as  ground  of  objection  that  they  do  not  state  facts 
sufficient  to  constitute  a  defence.  The  trial  Court  sustained 
the  demurrer  and  defendant  appeals. 

C.  D.  &"  Thomas  D.  O'Brien  for  appellant. 

B.  H.  Schriber  for  respondent. 

Vanderburgh,  J.  The  plaintiff  demurred  to  the  second  and 
third  defences  set  up  in  the  defendant's  answer,  and  this  appeal 
is  from  the  order  sustaining  the  demurrer. 

The  action  is  brought  upon  a  policy  of  insurance  issued  by 
the  defendant  to  the  plaintiff  for  a  loss  covered  thereby.  It  is 
alleged,  by  way  of  defence,  that  subsequent  to  the  date  of 
plaintiff's  policy  the  St.  Paul  German  Insurance  Company,  a 
corporation  lawfully  doing  business  in  this  State,  had  "  re- 
insured the  said  policy,  and  promised  and  agreed  with  the  said 
plaintiff  and  this  defendant  to  pay  to  the  plaintiff  any  loss 
which  she  might  suffer  under  said  policy,  and  said  agreement 
was  in  full  force  and  effect  at  the  time  of  the  pretended  occur- 
rence of  the  fire  described  in  the  complaint,  if  any  such  fire  did 
occur,  and  that  said  plaintiff  had  always  full  notice  and  knowl- 
edge thereof."  It  further  appears  that  thereafter,  and  before, 
the  commencement  of  this  action,  the  St.  Paul  German  Insur- 
ance Company  duly  made  an  assignment  under  the  insolvency 
laws  of  the  State,  and  that  the  plaintiff  has  duly  filed  and 
proved  her  claim  in  the  insolvency  proceedings  for  the  loss  in- 
demnified against  by  defendant,  and  so  assumed  by  the  German 
Insurance  Company.  It  is  claimed  by  the  defendant  in  this 
action  that,  by  electing  to  proceed  against  the  estate  of  the 
German  Insurance  Company,  the  plaintiff  has  effectually  waived 
her  remedy  against  the  defendant  upon  the  policy  sued  on. 

It  will  be  conceded  that  the  agreement  between  the  two  com- 


SEC.  I.]  BARNES  V.  HEKLA  FIRE  INSURANCE   CO.  853 

panics  set  out  in  the  answer  is  not  merely  a  contract  of  reinsur- 
ance, but  also  to  pay,  and  assume  the  payment  of,  losses  of 
parties  indemnified  by  policies  issued  by  the  defendant  com- 
pany reinsured.  Reinsurance  is  a  mere  contract  of  indemnity, 
in  which  an  insurer  reinsures  risks  in  another  company.  In 
such  a  contract  the  policy-holders  have  no  concern,  are  not  the 
parties  for  whose  benefit  the  contract  of  reinsurance  is  made, 
and  they  cannot,  therefore,  sue  thereon.  But  the  agreement 
alleged  in  this  case  is  not  a  mere  reinsurance  of  the  risks  by 
the  reinsurer,  but  it  embraces  also  an  express  agreement  to 
assume  and  pay  losses  of  the  policy-holder,  and  is  therefore  an 
agreement  upon  which  he  is  entitled  to  maintain  an  action 
directly  against  the  reinsurer.  Johannes  v.  Phenix  Ins.  Co., 
66  Wis.  50  (27  N.  W.  414). 

This  is  not,  however,  a  case  where  the  insurer  is  put  to  an 
election  between  his  remedies  against  the  two  companies. 

Unless  there  was  a  substitution  of  debtors,  in  the  nature  of  a 
novation,  between  the  three  parties,  upon  the  plaintiff's  consent 
to  the  new  agreement,  the  plaintiff  has  not  waived  or  lost  her 
right  of  action  against  the  defendant.  A  creditor  is  put  to  an 
election  only  where  his  remedies  are  inconsisterxt,  and  not  where 
they  are  consistent  and  concurrent.  In  the  latter  case  a  party 
may  prosecute  as  many  as  he  has,  as  in  the  case  of  several 
debtors.  And  so,  if,  in  this  instance,  the  remedy  against  the 
insolvent  company,  as  respects  the  plaintiff,  was  merely  cumu- 
lative, there  is  no  reason  why  she  may  not  pursue  either  or 
both.  As  between  the  two  companies,  the  defendant  occupies 
no  better  position  than  a  surety.  It  is  not  like  the  case  of  a 
former  suit  pending  between  the  same  parties.  She  may  have 
an  action  against  each  at  the  same  time,  but  only  one  satisfac- 
tion ;  an4  to  this  end  the  Court  may  interpose  by  a  stay  when 
found  necessary.  But  an  action  against  the  party  primarily  or 
originally  liable  in  such  cases  may  be  necessary,  in  order  to 
save  rights  under  the  Statute  of  Limitations,  or  for  like  reasons. 

The  new  agreement  between  the  companies  referred  to,  which 
inured  to  plaintiff's  benefit,  lacks  the  essential  elements  of 
novation. 

It  is  not  alleged  that  it  was  mutually  understood  or  agreed 
between  the  two  companies  that  the  liability  of  the  defendant 
should  be  discharged,  and  the  new  promisor  should  be  substi- 
tuted and  accepted  as  plaintiff's  debtor  in  the  place  of  the  de- 
fendant, or  that  plaintiff  ever  assented  to  or  adopted  any  such 
thing. 

In  some  few  cases — notably  in  Rhode  Island — it  is  held  that 
such  an  agreement  necessarily  implies  an  intention  to  substitute 


854  BARNES  7'.  HEKLA  FIRE  INSURANCE   CO.     [CHAP.  III. 

the  new  for  the  original  debtor,  and  that  the  creditor,  in  assent- 
ing to  it,  adopts  it  as  a  substitutional  agreement.  Urquhart  v. 
Bmyton,  12  R.  I.  172  ;  Wood  v.  Moriarty,  15  R.  I.  522  (9  Atl. 
427).  But  this,  we  think,  is  importing  a  stipulation  into  the 
agreement  by  construction  which  the  parties  have  not  made. 
It  is  frequently  the  case  that  the  creditor  consents  to  the 
arrangement  as  a  favor,  or  for  the  convenience  of  his  debtor  ; 
and  we  apprehend  it  would  be  a  surprise  to  the  parties,  as  well 
as  an  injustice,  in  many  cases,  if  it  were  held  to  operate  as  a 
release  of  the  original  liability  ;  and  therefore  it  should  dis- 
tinctly appear,  from  the  express  terms  of  the  agreement,  or  as 
a  necessary  inference  from  the  situation  of  the  parties,  and  the 
special  circumstances  of  the  case,  that  such  was  the  intention 
and  understanding  of  the  parties,  of  which  the  creditor  was 
chargeable  vi^ith  notice,  and  this  is  the  generally  accepted  doc- 
trine of  the  courts.     11  Amer.  &  Eng.  Enc.  Law,  889-890. 

In  the  early  case  of  Farley  v.  Cleveland,  4  Cow.  432,  in  which 
this  remedy  of  a  creditor,  upon  a  promise  for  his  benefit  made 
to  his  debtor,  upon  a  consideration  moving  from  the  latter,  is 
elaborately  considered,  the  fact  of  the  subsisting  liability  of  the 
original  debtor  is  recognized,  and  held  no  obstacle  to  the  right 
of  recovery  by  the  third  party  creditor,  and  such  continued 
liability  is  generally  assumed  by  the  courts. 

The  exact  ground  upon  which  the  direct  liability  to  the  cred- 
itor in  this  class  of  cases  should  be  placed,  appears  to  be  left  in 
doubt  by  the  cases. 

It  is  called  the  "  American  doctrine,"  because  peculiar  to  the 
courts  of  this  country,  though  all  do  not  assent  to  it — notably 
those  of  Massachusetts. 

It  is  an  equitable  rule,  adopted  for  convenience,  and  to  avoid 
circuity  of  action,  and  the  formality  of  an  assignment  by  the 
original  debtor  of  the  new  agreement  with  him,  and  is  strictly 
in  accordance  with  the  intention  of  the  parties  to  the  contract 
in  creating  a  liability  in  favor  of  a  third  party  creditor.  Gif- 
ford  V.  Corrigan,  117  N.  Y.  264-265  (22  N.  E.  756).  The  same 
rule  of  procedure  is  held  applicable,  though  not  uniformly, 
where  the  grantee  of  a  mortgagor  assumes  in  his  deed  to  pay 
off  the  incumbrance. 

The  mortgagee  may  proceed  by  action  directly  against  the 
grantee,  but  the  mortgagor  still  remains  liable,  and  is  held  to 
occupy  the  relation  of  surety  for  the  grantee,  who,  as  between 
them,  becomes  the  principal  debtor.  Thorp  v.  Keokuk  Coal 
Co.,  48  N.  Y.  257-258  ;  Klapworth  v.  Dressier,  78  Am.  Dec. 
76-77,  note. 

There  is  no  double  liability.     There   is  no  dividend  as  yet 


SEC.  II.]  BARNES  V.  HEKLA  FIRE  INSURANCE   CO.  855 

shown  in  the  insolvenc}''  proceedings,  and  there  is  of  course 
nothing  to  be  credited  upon  the  plaintiff's  claim.  The  receipt 
of  a  dividend  would  only  operate  as  a  pro  tanto  satisfaction  ; 
and  if  defendant  is  required  to  pay  before  the  dividend,  it  will 
be  entitled  to  it,  and  may  be  subrogated  to  the  rights  of  plain- 
tiff therein,  so  that  there  need  be  no  embarrassment  in  adjust- 
ing the  rights  of  the  parties. 

Other  questions  in  the  case  do  not,  we  think,  demand  any 
discussion. 

Order  afifirmed. 

Section   II. — Assignees. 

Things  in  action,  and  things  of  that  nature,  as  causes  of  suit, 
rights  and  titles  of  entry  are  not  grantable  over  to  strangers 
but  in  special  cases.  ...  If  a  man  owe  me  money  on  an 
obligation,  or  the  like  ;  I  cannot  grant  this  debt  to  another  ; 
but  I  may  grant  a  letter  of  attorney  to  another  man  to  sue  for 
it  and  receive  it,  or  I  may  grant  the  writing  itself  to  another, 
and  he  may  cancel  it  or  give  it  to  the  obligor. 

A  man  may  give  or  grant  his  deeds,  i.  e.,  the  parchment, 
paper  and  wax  to  another  at  his  pleasure,  and  the  grantee  may 
keep  or  cancel  them.  And,  therefore,  if  a  man  have  an  obliga- 
tion he  may  give  or  grant  it  away,  and  so  sever  the  debt  and  it. 
— Sheppard's  Touchstone,  240-242. 

"  The  wisdom  and  policy  of  the  sages  and  founders  of  the 
law,"  says  Lord  Coke,  and  this  has  often  been  repeated,  "  have 
provided  that  no  possibility,  right,  title  nor  thing  in  action 
shall  be  granted  or  assigned  to  strangers,  for  that  would  be  the 
occasion  of  multiplying  contentions  and  suits."'  But,  in  re- 
gard to  choses  in  action,  as  the  same  doctrine  has  been 
adopted  in  every  other  state  of  Europe,  it  may  be  doubted 
whether  the  reason,  which  has  been  the  foundation  of  the  rule 
everywhere  else,  was  not  also  the  reason  for  its  introduction  in 
this  country  ;  namely,  that  the  credit  being  a  personal  right  of 
the  creditor,  the  debtor  being  obliged  toward  that  person  could 
not  by  a  transfer  of  the  credit,  which  was  not  an  act  of  his, 
become  obliged  toward  another  ;  and  the  more  especially  as 
the  mode  of  effecting  a  virtual  transfer  which  was  invented  by 
the  Roman  jurisconsults,  namely,  by  constituting  the  assignee 
the  mandatory  of  the  creditor^  to  sue  for  and  recover  the  debt 
in   the   name   of  the  creditor,^  has  also    been   adopted   in   our 

1  Lampet's  case,  10  Co.  48,  a. 

^  Ibid.\  and  see  Cod.  J.  viii.  42,  1  ;  Domat.    lib.  iv.  tit.  4,  §  3,  4. 

*  See  Pothier's  Treatise  on  Contract  of  Sale,  quoted,  Story,  §  1040,  note. 


856  GLENN   V.    MARBURY.  [CHAP.  III. 

system  of  jurisprudence.  It  may  be  observed  that  the  sale  of  a 
debt,  together  with  the  security  was  declared  to  be  valid  by  the 
Emperor  Alexander  Severus,'  and  it  was  evidently  not  an 
uncommon  thing  for  debtors  to  assign  debts  owing  to  them  by 
others  to  their  own  creditors  ;  and  if  notice  were  given  to  the 
debtor,  the  receipt  of  the  assignor  was  no  discharge  :  the  same 
principle,  as  will  be  presently  seen,  now  prevails  in  our  system 
of  jurisprudence.'— 2  Spence's  Equitable  Jurisdiction,  851. 


GLENN  V.  MARBURY. 

In  the  Supreme  Court  of  the  United  States,  May  16,  1892. 
{Reported  m  145  United  States  Reports  499.] 

The  case  is  stated  in  the  opinion. 

Henry  Wise  Garnett,  Conway  Robinson^  Jr.,  Charles  Marshall 
and  John  Howard  for  plaintiff  in  error. 

Martin  F.  Morris  for  defendant  in  error. 

Harlan,  J.,  delivered  the  opinion  of  the  court. 

This  action  at  law  was  brought,  March  22,  1889,  by  John 
Glenn,  in  his  capacity  as  substituted  trustee  in  a  certain  deed 
of  trust  made  by  the  National  Express  and  Transportation 
Company,  a  corporation  of  Virginia  ;  also,  as  trustee  by  virtue 
of  an  order  passed  by  the  Chancery  Court  of  the  City  of  Rich- 
mond, Virginia,  in  a  suit  in  equity  brought  by  William  W. 
Glenn,  suing  on  behalf  of  himself  and  others,  creditors  of  that 
corporation.  Its  object  was  to  obtain  a  judgment  against  the 
defendant,  Marbury,  for  the  sum  alleged  to  be  due  from  him 
under  an  order,  in  the  above  cause,  making  an  assessment  and 
call  on  subscribers  to  the  stock  of  that  company. 

The  facts  necessary  to  be  stated  in  order  to  show  fully  the 
grounds  of  the  defence  are  as  follows  : 

In  August,  1S66,  Josiah  Reynolds,  a  citizen  of  Maryland  and 
a  stockholder  of  the  National  Express  and  Transportation  Com- 
pany, suing  on  behalf  of  himself  and  all  stockholders  of  that 
corporation  who  should  come  in  and  contribute  to  the  expenses 
of  the  suit,  brought  an  action  in  equity  in  the  Circuit  Court  of 
the  United  States  for  the  Eastern  District  of  Virginia,  against 
that  corporation — to  be  hereafter,  in  this  opinion,  designated  as 
the  Express  Company — and  against  its  president,  directors,  and 

'  Cod.  J.  iv.  tit.  39,  i,  3. 

'  Cod.  J.  viii.  42,  3  ;  v.  infra  as  to  the  same  doctrine  in  the  Covirt  of 
Chancery. 


SEC.  III.]  GLENN   V.    MARBURY.  857 

superintendent.  The  bill  set  forth  that  the  company  had  been 
and  was  then  being  conducted  in  a  reckless,  extravagant,  and 
improvident  manner,  and  that  the  money  subscribed  by  the 
plaintiff  and  other  stockholders  had  been  and  was  being  wasted 
and  misapplied  in  conducting  its  business,  chiefly  in  ways  and 
for  purposes  that  were  illegal  and  in  fraud  of  the  rights  of 
stockholders.  The  relief  sought  was  an  injunction  restraining 
and  prohibiting  the  company  from  conducting  its  business  in 
the  illegal  and  improvident  manner  specified  in  the  bill.  The 
bill,  also,  prayed  that  a  receiver  be  appointed  by  the  court  to 
take  possession  of  the  property  and  effects,  books  of  account, 
and  papers  of  the  company  ;  that  such  property  and  effects 
might  be  sold  and  disposed  of,  and  any  money  due  the  company 
collected  by  the  receiver  ;  and  that  an  account  be  taken  under 
the  order  of  the  court  of  its  business,  its  debts,  and  liabilities 
paid,  and  the  balance  distributed  among  the  stockholders.  The 
bill  particularly  referred  to  an  agreement  with  one  Ficklin  which, 
it  was  alleged,  ought  to  be  set  aside  as  in  fraud  of  the  rights  of 
stockholders.  The  defendants  were  duly  served  with  process, 
and  one  of  them,  J.  J.  Kelly,  the  superintendent  of  the  Express 
Company,  filed  an  answer.  The  company  appeared  and 
adopted  as  its  own  the  answer  of  Kelly. 

On  August  23d,  1866,  an  order  of  inj  unction  was  issued  restrain- 
ing the  defendants  "  from  collecting  or  taking  any  proceedings 
to  collect  or  enforce  from  the  complainant  the  payment  of 
moneys  for  or  on  account  of  his  stock  in  said  company  or 
assignments  or  calls  thereon,  either  by  sales  of  stock  or  other- 
wise, and  from  making  any  assessments  upon  the  complainant 
in  respect  to  or  on  account  of  his  said  stock,  and  also  enjoining 
and  restraining  the  said  company,  its  directors,  agents,  and 
servants,  from  pleading,  using,  or  applying  the  property,  funds, 
effects,  and  credits  of  the  said  company  to  or  for  any  purposes 
or  objects  other  than  the  regular  and  legitimate  express  and 
transportation  business  for  which  the  said  company  was  organ- 
ized, and  from  carrying  out  or  fulfilling  the  agreement  with 
Benjamin  Ficklin,  mentioned  in  said  bill  or  any  similar  agree- 
ment with  any  other  person,  and  from  selling  any  of  the  shares 
of  said  stock  held  or  owned  by  the  complainant  until  the 
further  order  of  this  court." 

The  Express  Company,  on  September  20th,  1866 — having  pre- 
viously appeared  and  filed  its  answer  in  the  Reynolds  suit — 
executed  to  John  Blair  Hoge,  J.  J.  Kelly,  and  C.  Oliver 
O'Donnell,  a  deed  assigning  and  conveying  to  them  all  the 
estate,  property,  rights,  and  credits  of  the  company,  of  every 
kind  and  wiierever  they  might  be,  including  moneys  payable  to 


858  GLENi.'   i:    MAKBURY.  [CHAP.  III. 

the  company,  "  whether  on  calls  or  assessments  on  the  stock  of 
the  company,"  or  on  notes,  bills,  accounts,  or  otherwise.  The 
deed  was  made  on  certain  trusts,  among  others,  that  the  trustees 
should  permit  the  Express  Company  to  remain  in  the  possession 
and  use  of  all  the  property  conveyed  or  assigned,  except  debts, 
claims,  and  moneys  payable,  until  November  ist,  1866,  and  there- 
after until  the  trustees  should  be  requested  by  one  or  more  of 
the  creditors  secured  by  the  deed,  and  whose  debt  or  debts 
should  then  be  due,  to  take  possession  of  the  assigned  property  : 
the  trustees,  however,  to  take  possession  at  any  time,  if  re- 
quested by  the  company's  board  of  directors.  The  trustees 
were  required  by  the  deed  to  proceed  without  unnecessary 
delay  "  to  collect  all  the  debts,  claims,  and  moneys  payable, 
which  are  hereby  granted  or  assigned." 

On  December  3TSt,  1866,  the  court  appointed  a  receiver  of  the 
money,  property,  and  effects  of  the  Express  Company,  "  with 
all  the  powers,  rights,  and  obligations  usual  in  such  cases,  sub- 
ject to  the  control  of  this  court,  until  the  affairs  of  said  com- 
pany be  fully  and  finally  closed  up."  He  was  ordered  to 
execute  and  file,  before  entering  upon  his  duties,  a  bond,  with 
sureties  to  be  approved  by  the  court,  of  $20,000,  conditioned 
for  the  faithful  discharge  of  his  duties  as  receiver  of  the  funds, 
property,  and  effects  of  the  Express  Company.  It  was  further 
provided  in  the  order  appointing  the  receiver  as  follows  : 

"  That  upon  the  execution,  approval,  and  filing  of  said  bond 
the  said  receiver  shall  be  vested  with  all  the  estate,  real  and 
personal,  as  well  as  all  the  money,  notes,  accounts,  assessments 
due  on  stock  or  other  securities,  or  rights  in  action  of  the  said 
National  Express  and  Transportation  Company,  as  trustee  of 
such  estate  and  property,  for  the  use  and  benefit  of  the  cred- 
itors of  said  company  and  of  its  stockholders  and  others  who 
may  be  interested  in  the  same,  with  all  the  powers,  rights,  and 
authority  of  a  trustee  appointed  by  this  court  or  acting  within 
its  jurisdiction  and  control. 

"  Such  receiver  shall  have  all  the  powers  and  authority  which 
ordinarily  belong  to  such  trustee,  and  the  said  defendants,  as 
well  as  all  other  persons  who  may  have  the  possession  or  con- 
trol of  any  of  the  money,  books,  property,  effects  or  things  in 
action  of  the  said  National  Express  and  Transportation  Com- 
pany, and  especially  John  Blair  Hoge,  John  J.  Kelly,  and 
C.  Oliver  O'Donnell,  the  trustees  named  in  a  pretended  assign- 
ment referred  to  in  the  complainant's  petition,  are  hereby 
required  to  assign,  transfer,  and  deliver  to  the  said  trustee,  on 
being  notified  of  this  order,  all  such  money,  property,  notes, 
bonds,  estate,  real    and    personal,  so    in   their  hands   or  under 


SEC.  III.]  GLENN   V.    MARBURY.  859 

their  control,  and  they  are  also  required  to  execute  and  deliver 
all  deeds,  conveyances,  releases,  transfers,  or  acquittances  that 
may  in  anywise  be  necessary  to  place  any  or  all  of  said  property 
or  effects  so  in  the  hands  or  under  the  control  of  the  said 
receiver,  and  they  and  each  of  them,  on  being  required,  shall 
make  all  discovery  and  furnish  all  information  which  tlie  said 
receiver  may  require  in  relation  to  any  or  all  of  the  property, 
business  or  transactions  of  tlie  said  company. 

"  The  said  receiver  will  proceed  to  collect  all  the  property, 
money  and  effects  of  the  said  National  Express  and  Transpor- 
tation Company  and  convert  the  same  into  money,  and  he  will 
also  ascertain  the  amount  of  the  debts  and  liabilities  of  the  said 
National  Express  and  Transportation  Company,  and,  after  pay- 
ment therefrom  of  all  expenses,  including  counsel  fees  and 
costs,  with  such  compensation  as  the  court  may  allow  him,  will, 
from  time  to  time,  apply  the  funds  so  received  and  obtained  by 
him  in  the  satisfaction  and  discharge  of  the  debts  of  the  said 
company  under  the  orders  of  this  court. 

"  And  if  there  shall  be  any  sums  due  upon  the  shares  of  the 
capital  stock  of  the  said  company  the  said  receiver  will  proceed 
to  collect  and  recover  the  same,  unless  the  persons  from  whom 
the  said  sums  may  be  due  shall  be  wholly  insolvent,  and  for 
this  purpose  may  prosecute  actions  at  law  or  in  equity  for  the 
recovery  of  such  sums  in  his  own  name  as  receiver  or  otherwise 
as  he  may  deem  best,  and  shall  apply  the  money  so  received 
under  the  order  of  this  court  to  the  satisfaction  and  payment  of 
the  remaining  debts  of  said  company,  as  well  as  the  legal  and 
necessary  expenses  of  the  due  execution  of  this  trust,  including 
a  reasonable  compensation  and  commission  to  himself  for  ser- 
vices on  this  behalf  and  also  including  such  necessary  and 
reasonable  fees  and  costs  as  may  be  necessary  in  maintaining, 
prosecuting,  or  defending  any  suit  or  suits  which  it  may  be 
necessary  to  prosecute  or  defend  in  order  to  the  full  execution 
of  this  trust." 

The  receiver  gave  the  required  bond,  and  it  was  approved  by 
the  court  on  January  12th,  1867. 

Reynolds  having  died,  Washington  Kelley,  a  stockholder,  was 
permitted  to  become  a  party  plaintiff  and,  with  the  leave  of  the 
court,  filed  August  20th,  1870,  an  amended  and  supplemental  bill. 
The  receiver  reported  to  the  court,  December  nth,  1880,  that  he 
had  not  been  able  to  obtain  possession  of  any  of  the  company's 
effects,  except  two  freight  cars,  and  that  so  far  as  he  could 
ascertain,  in  all  the  States  where  the  company  did  business,  its 
property  and  effects  had  been  attached  by  its  creditors.  This 
report  being  made,  "  on   motion  of  the  defendants  John  Blair 


86o  GLENN   V.    MAPBURY.  [cHAP.  III. 

Hoge  and  J.  J.  Kelly,"  ihe  order  appointing  the  receiver  was 
vacated,  annulled,  and  set  aside,  the  receiver  discharged  and 
exonerated,  the  injunction  dissolved,  and  the  suit  dismissed. 

On  December  4th,  1871,  W.  W.  Glenn,  suing  on  behalf  of  him- 
self and  all  other  creditors  of  the  Express  Company,  filed  his 
bill  in  equity,  in  the  Chancery  Court  of  the  City  of  Richmond 
against  that  corporation,  and  its  officers,  and  against  the  trus- 
tees named  in  its  deed  of  September  20th,  1866.  The  object  of 
that  suit  was  to  collect  the  assets  of  the  company,  including 
the  amounts  due  from  the  subscribers  to  its  stock.  The  pro- 
ceedings in  that  cause  are  fully  set  out  in  Hawkins  v.  Glenn, 
131  U.  S.  319.  It  is  only  necessary  now  to  state  that  in  the 
progress  of  that  suit  an  order  was  entered  December  14th,  1880, 
sustaining  the  validity  of  the  deed  of  assignment  of  September 
20th,  1866,  removing  the  surviving  trustees  named  in  it,  with  their 
consent,  and  substituting  in  their  place  John  Glenn,  who  was 
clothed  by  that  oider,  "  with  all  the  rights  and  powers,  and 
charged  with  all  the  duties  of  executing  the  trusts  of  said  deed 
to  the  same  effect  as  were  the  original  trustees  therein  ;"  Glenn, 
however,  not  to  take  possession  of  the  property  covered  by  the 
deed,  until  he  gave  bond  with  security  for  the  faithful  discharge 
of  his  duties  as  substituted  trustee.  He  gave  such  bond  Janu- 
ary 3d,  1881,  and  it  was  approved  by  the  court. 

By  the  same  order  a  call  and  assessment  of  thirty  per  cent, 
of  the  par  value  of  each  share  of  stock  was  made  upon  stock- 
holders, who  were  required  to  make  payment  to  John  Glenn, 
substituted  trustee.  By  a  decree  entered  July  21st,  1883,  it  was 
adjudged  "  that  John  Glenn,  trustee,  on  the  payment  to  him, 
within  six  months  from  the  date  of  this  decree,  by  any  of  the 
subscribers  to  the  stock  of  the  defendant  company,  or  by  any 
other  person  claimed  to  be  liable  on  account  of  said  stock,  of 
twenty-five  per  centum  of  the  original  amount  of  said  subscrip- 
tion, with  interest  thereon  at  the  rate  of  six  per  centum  per 
annum,  from  thirty  days  from  the  date  of  this  decree,  with  any 
costs  incurred  heretofore  or  by  said  trustee  in  any  suit  brought 
by  him  heretofore,  or  which  may  hereafter  be  brought  before 
lender  of  said  twenty-five  per  cent,  under  this  decree,  to  recover 
of  such  stockholder  or  other  party,  the  amount  for  which  he 
may  be  responsible  on  said  stock  under  the  decree  in  this  cause, 
shall  execute  a  receipt  therefor  to  operate  as  a  full  acquittance 
and  discharge  of  all  persons  on  account  cf  such  subscription, 
both  of  the  original  subscribers  thereto,  and  of  any  assignee 
thereof."  By  another  order,  made  March  26th,  1S86,  in  the  Cir- 
cuit Court  of  Henrico  County,  Virginia — to  which  the  cause 
was  removed  in  1884 — an  additional  call  and  assessment  of  fifty 


SEC.  III.]  GLENN   V.    MARBURY.  86l 

per  cent,  of  the  par  value  of  each  share  of  stock  was  made  upon 
stockholders,  who  were  severally  required  to  pay  the  said 
amounts  hereby  called  for  and  assessed  to  John  Glenn,  he  being 
"  authorized  and  directed  to  collect  and  receive  said  call  and 
assessment,  and  to  take  such  prompt  steps  to  that  end,  by  suit 
or  otherwise,  and  in  such  jurisdictions  as  he  may  be  advised." 

Marbury,  it  is  admitted,  was  an  original  subscriber  for  loo 
shares  of  the  company's  stock,  for  which  he  received  a  certifi- 
cate, paying  twenty  per  cent,  only  on  his  subscription.  The 
object  of  the  present  suit  is  to  recover  from  him  the  sum  of 
$5000,  by  reason  of  the  above  call  and  assessment  of  fifty  per 
cent.,  with  interest  at  the  rate  of  six  per  cent,  per  annum  from 
March  26th,  1886,  the  date  of  the  order  making  such  call  and 
assessment.  He  pleaded  that  the  plaintiff,  as  trustee,  had  no 
right  to  sue  in  the  court  below  in  his  own  name  or  otherwise.' 


The  other  question — as  to  the  light  of  the  plaintiff,  in  virtue 
of  the  authority  conferred  upon  him  by  the  Virginia  court,  to 
bring  the  present  action  in  his  own  name  as  trustee,  is  a  more 
serious  one.  In  Jackson  v.  Tiernan,  5  Pet.  580,  597,  599, 
Story,  J.,  speaking  for  the  court,  said  that  "  the  general 
principle  of  law  is,  that  choses  in  action  are  not  at  law  assigna- 
ble. But,  if  assigned,  and  the  debtor  promises  to  pay  the  debt 
to  the  assignee,  the  latter  may  maintain  an  action  for  the 
amount  against  the  debtor,  as  money  received  to  his  use.  Inde- 
pendently of  such  promise,  there  is  no  pretence  that  an  action 
can  be  sustained."  After  referring  to  some  adjudged  cases, 
which  he  said  were  distinguishable  from  the  one  then  before 
the  court,  he  proceeded  :  "  They  are  either  cases  where  there 
was  an  express  promise  to  hold  the  money  subject  to  the  order 
of  the  principal,  or  there  was  an  implied  promise  to  pay  it  over 
as  it  was  received  to  the  use  of  a  particular  person.  The  ex- 
press promise  to  pay  to  order  bound  the  party,  and  excluded 
any  claim  for  alien,  and  any  defence  for  want  of  privity  between 
him  and  the  holder  of  the  order.  The  receipt  of  the  money 
for  the  use  of  a  particular  person  necessarily  imported  a 
promise  or  obligation  to  hold  it  in  privity  for  such  person." 

In  Pritchard  v.  Norton,  106  U.  S.  124,  130,  Matthews,  J., 
delivering  judgment,  said  :  "  Whether  an  assignee  of  a  chose 
in  action  shall  sue  in  his  own  name  or  that  of  his  assignor 
is  a  technical  question  of  mere  process,  and  determinable  by 
the  law  of  the  forum  ;  but  whether  the  foreign  assignment,  on 
which  the  plaintiff  claims,  is  valid  at  all  or  whether  it  is  valid 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ed. 


§62  GLENN   V.    MARBURY.  [cHAP.  III. 

against  the  defendant,  goes  to  the  merits  and  must  be  decided 
by  the  law  in  which  the  case  has  its  legal  seat.  Wharton,  Con- 
flict of  Laws,  §§  735,  736."  And  in  New  York  Guaranty  Co.  v. 
Memphis  Water  Co.,  107  U.  S.  205,  214,  the  court,  speaking  by 
Bradley,  J.,  said  :  "  We  have  lately  decided,  after  full  con- 
sideration of  the  authorities,  that  an  assignee  of  a  chose  in 
action,  in  which  a  complete  and  adequate  remedy  exists  at  law, 
cannot,  merely  because  his  interest  is  an  equitable  one,  bring 
a  suit  in  equity  for  the  recovery  of  the  demand.  Hayward  v. 
Andrews,  106  U.  S.  672.'     He  must  bring  an  action  at  law  in 

'  It  is  admitted  that,  according  to  the  rule  declared  and  established  in 
Root  V.  Railway  Company,  105  U.  S.  189,  the  patentee  could  not,  in  his 
own  name  and  right,  maintain  the  present  suit,  and  the  original  bill  was 
accordingly  dismissed  as  to  him.  To  permit  the  appellant  to  proceed  in 
equity,  upon  the  mere  ground  of  the  assignment  to  him,  would'  be  substan- 
tially to  abrogate  that  rule.  The  prmciple  was  stated  to  be  that  the  relief 
granted  to  a  patentee  in  equity,  by  the  recovery  of  profits  and  damages 
against  an  infringer,  was  "incidental  to  some  other  equity,  the  right  to 
enforce  which  secures  to  the  patentee  his  standing  in  court  ;"  that  "the 
most  general  ground  for  equitable  interposition  is  to  insure  to  the  patentee 
the  enjo3-ment  of  his  specific  right  by  injunction  against  a  continuance  of 
the  infringement  ;  but  that  grounds  of  equitable  relief  may  arise  other 
than  by  the  way  of  injunction  ;"  and  among  these,  by  way  of  illustration, 
was  mentioned  that  "  where  the  title  of  the  complainant  is  equitable 
merely  ;"  but  it  is  the  obvious  meaning  of  the  passage  to  limit  the  exception 
to  cases  where  the  purpose  and  necessity  of  the  resort  to  a  Court  of  Chan- 
cery are  to  enforce  the  peculiar  equity  personal  to  the  complainant,  and  not 
merely  the  legal  right  of  which  he  is  the  beneficial  owner.  If  the  assignee 
of  the  chose  in  action  is  unable  to  assert  in  a  court  of  law  the  legal  right  of 
the  assignor,  which  in  equity  is  vested  in  him,  then  the  juiisdiction  of  a 
Court  of  Chancery  may  be  invoked,  because  it  is  the  proper  forum  for  the 
enforcement  of  equitable  interests,  and  because  there  is  no  adequate 
remedy  at  law  ;  but  when,  on  the  other  hand,  the  equitable  title  is  not  in- 
volved in  the  litigation,  and  the  remedy  is  sought  merely  for  the  purpose  of 
enforcing  the  legal  right  of  his  assignor,  there  is  no  ground  for  an  appeal 
to  equity,  because  by  an  action  at  law  in  the  name  of  the  assignor  the 
disputed  right  may  be  perfectly  vindicated,  and  the  wrong  done  by  the 
denial  of  it  fully  redressed.  To  hold  otherwise  would  be  to  enlarge  the 
jurisdiction  of  courts  of  equity  to  an  extent  the  limits  of  which  could  not  be 
recognized,  and  that  in  cases  where  the  only  matters  in  controversy  would 
be  purely  legal  rights. 

In  opposition  to  this  view,  a  passage  from  Story,  Eq.  Jur.,  sect.  1057  a,  is 
cited  and  relied  on  in  argument,  in  which  that  learned  author,  after 
stating  that  it  had  been  "  recently  held  that  the  assignee  of  a  debt,  not  in 
itself  negotiable,  is  not  entitled  to  sue  the  debtor  for  it  in  equity,  unless 
some  circumstances  intervened  which  show  that  his  remedy  at  law  is,  or 
may  be,  obstructed  by  the  assignor,"  adds,  that  "  this  doctrine  is  apparently 
new,  at  least,  in  the  broad  extent  in  which  it  is  laid  down,  and  does  not 
seem  to  have  been  generally  adopted  in  America.  On  the  contrary,  the 
more  general  principle  established  in  this  country  seems  to  be,  that  wher- 
ever an   assignee  has  an  equitable   right  or  interest  in  a  debt  or  other 


SEC.  III.]  GLEXN   V.    M.\RHURV.  863 

the  name  of  the  assignor  to  his  own  use.  Thi;-)  is  true  of  all 
legal  demands  standing  in  the  name  of  a  trustee,  and  held  for 
the  benefit  of  cestuis  que  trust.  Besides  the  authorities  cited  in 
that  case,  reference  may  be  made  to  Mitford  on  Pleading,  123, 
125  ;  Willis's  Equity  Plead.  435,  note  g;  Adair  7'.  Winchester, 
7  Gill  &  Johns.  114  ;  Mosely  v.  Boush,  4  Rand.  Va.  392  ;  Dog- 
gett  V.  Hart,  5  Fla.  215  ;  Smiley  v.  Bell,  Mart.  &  Y.  Tenn.  378  ; 
and  the  English  and  American  notes  to  Ryall  v.  Rowles,  i  Ves. 
Sen.  348,  and  to  2  White  &  Tudor's  Leading  Cases  in  Equity, 
pp.  1567,  1670  (ed.  1877)." 

property  (as  the  assignee  of  a  debt  certainly  has),  then  a  court  of  equity  is 
the  proper  forum  to  enforce  it  ;  and  he  is  not  to  be  driven  to  any  circuity 
by  instituting  a  suit  at  law  in  the  name  of  tlie  person  who  is  possessed  of 
the  legal  title."  In  the  next  paragraph,  however,  it  is  admitted  that,  "  if 
the  assignment  be  of  a  contract  involving  the  consideration  and  ascertain- 
ment of  unliquidated  damages,  as  in  case  of  the  assignment  of  a  policy  of 
insurance,  then,  unless  some  obstruction  exists  to  the  remedy  at  law,  it 
would  seem  that  a  court  of  equity  ought  not,  or  might  not,  interfere  to 
grant  relief  ;  for  the  facts  and  the  damages  are  properly  matters  for  a  jury 
to  ascertain  and  decide.  But  the  same  objection  would  not  lie  to  an  assign- 
ment of  a  bond  or  other  security  for  a  fixed  sum." 

The  doctrine  referred  to  in  this  passage,  as  "apparently  new,"  is  that 
stated  by  Vice-Chancellor  Shadwell,  in  Hammond  v.  Messenger,  9  Sim.  327, 
332,  where  he  said  :  "  If  this  case  were  stripped  of  all  special  circumstances, 
it  would  be  simply  a  bill  filed  by  a  plaintiff,  who  had  obtained  from  certain 
persons  to  whom  a  debt  was  due,  a  right  to  sue  in  their  name  for  the  debt. 
It  is  quite  new  to  me,  that,  in  such  a  simple  case  as  that,  this  court  allows, 
in  the  first  instance,  a  bill  to  be  filed  against  the  debtor  by  the  person  who 
has  become  the  assignee  of  the  debt.  I  admit  that  if  special  circumstances 
are  stated,  and  it  is  represented  that  notwithstandmg  the  right  which  the 
party  has  obtained  to  sue  in  the  name  of  the  creditor,  the  creditor  will  inter- 
fere and  prevent  the  exercise  of  that  right,  this  court  will  interpose  for  the 
purpose  of  preventing  that  species  of  wrong  being  done  ;  and  if  the  creditor 
will  not  allow  the  matter  to  be  tried  at  law  in  his  name,  this  court  has  a 
jurisdiction  in  the  first  instance  to  compel  the  debtor  to  jjay  the  debt  to 
the  plaintiff,  especially  in  a  case  where  the  act  done  by  the  creditor  is  done 
in  collusion  with  the  debtor.  If  bills  of  this  kind  were  allowable,  it  is 
obvious  they  would  be  pretty  frequent  ;  but  I  never  remember  any  instance 
of  such  a  bill  as  this  being  filed,  unaccompanied  by  special  circumstances." 

And,  accordingly,  the  Supreme  Judicial  Court  of  Massachusetts,  in 
Walker  77.  Brooks,  125  Mass.  241,  held,  that  "a  court  of  equity  will  not 
entertain  a  bill  by  the  assignee  of  a  strictly  legal  right,  merely  upon  the 
ground  that  he  cannot  bring  an  action  at  law  in  his  own  name,  nor  unless 
it  appears  that  the  assignor  prohibits  and  prevents  such  an  action  from 
being  brought  in  his  name,  or  that  an  action  so  brought  would  not  afford 
the  assignee  an  adequate  remedy."  And  Graj',  C.  J.,  delivering  its  opinion 
in  that  case,  referring  to  the  passage  from  Story  to  the  contrary,  said  :  "  But 
the  adjudged  cases,  including  those  cited  by  the  learned  commentator, 
upon  being  examined,  fail  to  support  his  position,  and  show  that  the  doc- 
trine of  Hammond  v.  ]\Iessenger  is  ampl}'  sustained  by  earlier  authorities 
in  England  and  in  this  country."     This  conclusion  he  then  verifies  by  a 


864  GLENN   V.    MARBURY.  [cHAP    III. 

The  right  which  the  Express  Company  acquired  by  the  de- 
fendant's subscription  to  its  capital  stock  was  only  a  chose  in 
action.  It  passed  by  the  deed  of  September  20th,  1866,  to  the 
trustees  Blair,  Kelly,  and  O'Donnell,  but  subject  to  the  condition 
that  a  chose  in  action  is  not  assignable  so  as  to  authorize  tlie 
review  of  the  cases  from  the  time  of  Lord  Chancellor  King,  whose  decision 
in  Dhegetoft  v.  London  Assurance  Co.,  Mos.  83,  was  affirmed  in  the  House 
of  Lords  ;  4  Bro.  P.  C.  (2d  ed.)  430  ;  followed  by  Lord  Hardwicke,  in  Mot- 
teux  V.  London  Assurance  Co.,  i  Atk.  545  ;  and  Lord  Loughborough,  in 
Cator  V.  Burke,  i  Bro.  Ch.  434,  to  Vice-Chancellor  Knight  Bruce,  in  Rose  7/. 
Clark,  I  You.  &  Col.  C.  C.  534  ;  and  in  this  country  from  Carter  v.  United 
Insurance  Co.,  i  Johns.  (N.  Y .)  Ch.  463,  by  Cliaucellor  Kent  :  and  Ontario 
Bank  v.  Mumford,  2  Barb.  (N.  Y.)  Ch.  596,  615,  by  Chancellor  Walvvorth  ; 
including  several  others  in  various  States.  He  then  points  out  that  in 
Riddle  v.  Mandeville,  5  Cranch,  322,  the  principal  case  cited  by  Story,  J., 
in  support  of  his  statement,  a  bill  in  equity  by  an  indorsee  of  a  prom- 
issory note  against  a  remote  indorser  was  sustained  by  this  court,  upon  the 
ground  that  in  Virginia,  the  law  of  which  governed  the  case,  no  remedy  at 
law  could  be  had  against  him,  except  by  the  circuitous  course  of  successive 
actions  by  each  indorsee  against  his  immediate  indorser,  and  that,  in  that 
particular  case,  the  intermediate  party  was  insolvent  ;  and  that  Chief  Jus- 
tice Marshall,  who  delivered  the  opinion  in  that  case,  did  not  consider  it  as 
establishing  the  general  proposition  for  which  it  was  cited  was  manifest 
from  his  opinion  in  the  later  case  of  Lenox  1/.  Roberts,  2  Wheat.  373,  in 
which  the  assignee  of  all  the  property  of  a  banking  corporation  was  allowed 
to  maintain  a  bill  in  equity  in  his  own  name  upon  a  promissory  note  which 
had  not  been  formally  indorsed  to  him  for  the  reason  that  "  as  the  act  of 
incorporation  had  expired  no  action  could  be  maintained  at  law  by  the 
bank  itself." 

The  same  doctrine  had  received  a  pointed  application  by  this  court  in  the 
case  of  Thompson  v.  Railroad  Companies,  6  Wall.  134.  That  case  was  com- 
menced in  the  State  court  in  Ohio  by  the  parties  in  interest  in  their  own 
name,  although  only  beneficially  entitled,  in  accordance  with  the  code  of 
the  State.  It  was  removed  into  the  circuit  court,  where  the  plaintifTs  filed 
a  bill  in  equity,  because  their  title  was  equitable  merely.  A  decree  in  their 
favor,  on  appeal,  was  reversed  by  this  court.  Davis,  J.,  remarking, 
in  the  opinion,  that  "  this  case  does  not  present  a  single  element  fur 
equitable  jurisdiction  and  relief,"  and  added  :  "  The  absence  of  a  plain  and 
adequate  remedy  at  law  is  the  only  test  of  equity  jurisdiction,  and  it  is 
manifest  that  a  resort  to  a  Court  of  Chancery  was  not  necessary,  in  order  to 
enable  the  railroad  companies  to  collect  their  debt." 

That  decision  has  been  cited  with  approval  in  the  subsequent  cases  of 
Walker  v.  Dreville,  12  Wall.  440  ;  Van  Norden  v.  Morton,  99  U.  S  378  ; 
and  Huit  v.  HoUingsworth,  100  U.  S.  100. 

In  the  present  case,  the  complainant  had  a  plain  and  adequate  remedy  at 
law  by  an  action  in  the  name  of  Allen,  whose  willingness  to  permit  his 
name  to  be  so  used,  in  accordance  with  his  agreement  to  that  effect,  is 
manifest,  from  the  fact  that  in  the  original  bill  he  was  named  as  one  of  the 
complainants.  There  was,  therefore,  no  error  committed  by  the  circuit 
court  in  dismissing  the  amended  bill  for  want  of  jurisdiction  in  equity. 
Decree  affirmed.— Matthews,  J.,  Hay  ward  v.  Andrews,  106  U.  S.  672, 
675-^^79 — Ed. 


SEC.  in.]  GLENN   V.    MARBURY.  865 

assignee  to  sue  at  law,  in  his  own  name,  unless  the  right  to  do 
so  is  given  by  a  statute,  or  by  settled  law,  in  the  jurisdiction 
where  suit  is  brought.  This  is  the  well-established  rule  of  the 
common  law,  and  the  common  law  touching  this  subject  governs 
in  the  District  of  Columbia.  If  tlie  trustees  named  in  the  deed 
of  1866  had  sued  in  this  District  for  sums  due  upon  calls  or 
assessments  on  stock,  they  must  have  sued  in  the  name  of  the 
Express  Company  for  their  use,  unless  the  stockholders  ex- 
pressly promised  to  pay  them,  or  unless  such  a  promise  could 
be  implied  as  matter  of  law.  There  was  no  such  express  prom- 
ise by  Marbury,  although  he  concurred  in  the  assignment  made 
by  the  company  to  those  trustees. 

But  it  is  said  that  stockholders  must  be  presumed  to  assent 
to  every  lawful  disposition  made  of  its  property  by  the  corpo- 
ration. When  this  point  was  made  in  Glenn  v.  Busey,  5 
Mackey,  243,  it  was  fully  met  by  Cox,  J.,  speaking  for 
the  court.  After  observing  that  a  stockholder  in  a  corporation 
holds  a  double  relation  to  it  ;  that,  in  his  capacity  as  debtor, 
he  has  not  promised  to  pay  to  the  company's  order  or  to  its 
assignee,  but  to  the  company  onl}^  ;  and  that  as  stockholder  he 
would  not  be  held  to  have  given  more  than  the  general  author- 
ity to  the  corporation  to  deal  with  its  property,  he  said  :  "  If  we 
go  further  than  this,  we  must  hold  that  the  mere  fact  of  being 
a  stockholder  in  a  corporation  makes  his  indebtedness  a  nego- 
tiable one,  even  against  the  terms  of  his  agreement  with  the 
company  and  the  intention  of  the  parties.  Thus,  if  a  stock- 
holder borrowed  money  from  the  company  on  his  sealed  bond, 
the  argument  would  be  that  as  his  bond  is  a  part  of  the  assets 
of  the  company,  and  he  has  generally  and  impliedly  assented 
to  the  assignment  or  negotiation  of  its  property,  as  it  may  think 
best,  ergo,  his  bond  may  be  negotiated  like  a  promissory  note. 
But  this  reasoning  would  not  stop  at  corporations.  It  would 
apply  equally  to  partnerships.  Each  member  of  a  partnership 
is  the  agent  of  all,  and  all  the  others  are  the  agents  of  each,  and 
all  or  each  would  have  authority  to  settle  debts  by  the  assign- 
ment of  property  of  the  firm.  If,  then,  one  becomes  indebted 
to  the  firm  on  an  open  account,  the  firm,  on  the  principles  be- 
fore mentioned,  could  assign  or  negotiate  the  debt,  and  so  give 
the  assignee  a  right  of  action  in  his  own  name.  In  such  action 
the  plaintiff,  after  stating  the  original  indebtedness  and  its 
assignment,  which  would  make  a  demurrable  case,  would  only 
have  to  supplement  it  by  an  averment  that  the  debtor  was  a 
member  of  the  firm  who  made  the  assignment,  and  his  case 
would  be  complete.  It  is  hardly  necessary  to  say  that  this 
would   be   a   novelty  in   the   law   of  contracts   and   actions  and 


S66  GLENN   V.    MARBURY.  [CHAP.  HI. 

pleadings,  for  which  not  a  semblance  of  authority  could  be 
found." 

Is  the  question  as  to  the  right  of  the  trustee  Glenn  to  bring 
this  suit,  in  his  name,  any  different  by  reason  of  the  fact  that 
the  Virginia  court  made  the  call  or  assessment  in  question, 
substituted  the  plaintiff  as  trustee  in  the  place  of  Blair,  Kelly, 
and  O'Donnell  removed,  and  both  authorized  and  directed  him 
to  collect  and  receive  such  call  or  assessment,  taking  steps  to 
that  end  by  suit  or  otherwise,  and  in  such  jurisdiction  as  he 
might  be  advised  ?  We  think  not.  Undoubtedly  the  Express 
Company,  having  refused  or  neglected  to  make  the  necessary 
call  or  assessment,  a  court  of  equity  could  itself  make  it,  if  the 
interest  of  creditors  required  that  to  be  done.  In  other  words, 
as  said  in  Scovill  v.  Thayer,  105  U.  S.  143,  145,  and  repeated  in 
Hawkins  v.  Glenn,  131  U.  S.  335,  "  the  court  will  do  what  it  is 
the  duty  of  the  company  to  do."  See,  also,  Glenn  v.  Williams, 
60  Maryland,  93,  113,  114.  But  the  making  of  the  call  or  assess- 
ment by  the  court,  for  the  company,  does  not,  in  the  absence  of 
some  statutory  provision  on  the  subject,  change  the  rule  that  a 
demand  upon  the  stockholder  to  meet  a  call  or  assessment,  by 
competent  authority,  must  be  enforced  in  the  name  of  the  per- 
son or  corporation  holding  the  legal  title  to  the  stock  subscrip- 
tion, and  to  whom  the  promise  of  the  stockholder  was  made. 
There  is  no  reason  why  the  trustee  Glenn  could  not  have  sued 
in  the  name  of  the  company.  For,  as  said  in  Hawkins  z'.  Glenn, 
concurring  with  the  Supreme  Court  of  Appeals  of  Virginia  in 
Hamilton  z;.  Glenn,  85  Virginia,  901,  905,  "  as  this  corporation, 
notwithstanding  it  may  have  ceased  the  prosecution  of  the 
objects  for  which  it  was  organized,  could  still  proceed  in  the 
collection  of  debts,  the  enforcement  of  liabilities,  and  the  appli- 
cation of  its  assets  to  the  payment  of  its  creditors,  all  corporate 
powers  essential  to  those  ends  remained  unimpaired." 

We  concur  entirely  in  the  views  expressed  by  Cox,.  J., 
speaking  for  the  court,  in  Glenn  z>.  Busey,  where  will  be 
found  a  careful  and  elaborate  discussion  of  this  question.'     In 

'  This  then  is  simply  a  debt  to  the  corporation,  a  chose  in  action.  And 
the  plaintiff,  Glenn,  is  confronted  at  the  outset  by  the  defendant's  objection 
that  his  debt  could  not  be  assigned  by  the  corporation  so  as  to  give  to  any 
assignee  the  right  to  sue  the  defendant  in  his  own  name. 

Undoubtedly  the  common  law  is  so. 

The  express  company  could  not  have  made  a  specific  assignment  of  this 
subscription  with  that  effect  ;  nor  is  the  legal  result  changed  by  embracing 
this  unpaid  subscription  in  a  general  assignment  of  all  the  assets  of  the 
company.  It  is  still,  quoad  this  debt,  simply  an  assignment  of  a  chose  in 
action.  Whatever  effect  is  given  by  statute  to  an  assignment  by  operation 
of  law,  as  in  bankruptcy,  it  still  remains  true  that  a  voluntary  assignment. 


SEC.  II.]  GLENN    V.    MARRURY.  867 

harmony  with  the  decision  in  that  case,  we  hold  that  the  present 
suit  cannot,  consistently  with  the  principles  of  the  comnnjn  law 
— which  is  the  law,  upon  this  question,  for  the  District  of 
Columbia — be  maintained  by  the  plaintiff  in  his  own  name,  as 
trustee.  We  are  aware  that  a  different  rule  obtains  in  some 
jurisdictions  where  the  common  law  has  been  modified  by 
statute  or  by  a  settled  course  of  decisions,  but  we  are  unable  to 
hold  that  the  law  of  this  District  is  otherwise  than  has  been 
indicated  in  this  opinion. 
Judgment  affirmed. 

whether  general  or  specific,  of  a  chose  in  action,  can  transfer  only  the 
equitable  interest  in  it,  so  as  to  enable  the  assignee  to  sue  in  the  name  of 
the  assignor  for  his  use. 

How  the  force  of  this  objection  is  felt  by  the  plaintiff's  counsel  is  indi- 
cated by  the  ingenious  reasoning  employed  to  obviate  it. 

It  is  said  that  this  undertaking  of  the  stockholder  is  not  a  consummated 
contract  until  a  certain  condition  happens,  viz. ,  the  call  on  him  for  payment 
by  the  president  and  directors  ;  and  when  that  call  took  place  in  the  present 
case  the  debt  had  become  the  property  of  another,  to  wit,  the  trustee  ;  and 
therefore  when  it  became  a  complete  indebtedness  it  was  due  to  the  trustee. 

But  .this  assumes  the  whole  question.  Whether  complete  or  incomplete, 
the  indebtedness  was  nothing  more  than  a  chose  in  action  ;  afid  the  very 
question  is  how  and  to  what  extent  it  became  the  property  of  the  assignee, 
and  to  this  question  apply  all  the  considerations  just  enunciated. 

But  besides  it  is  an  error  to  speak  of  the  contract  as  not  consummated 
and  complete  before  the  money  was  payable.  At  least  from  the  moment 
when  the  corporation  came  into  being,  the  subscription  was  a  complete 
contract.  The  payment,  it  is  true,  was  not  to  be  made  until  called  for,  but 
it  was  none  the  less  a  promise  to  pay  to  the  company  when  called  upon  ; 
and  the  call  for  payment  could  make  no  change  in  the  parties  to  the  contract. 

Perhaps  the  most  ingenious  argument  is  derived  from  the  admitted  rule 
that  an  assignment  of  a  chose  in  action,  with  the  right  of  action  on  it,  may 
be  made  if  the  debtor  assents  to  it  and  promises  to  pay  to  the  assignee. 

It  is  attempted  to  apply  this  rule  to  the  present  case  by  arguing  that  every 
stockholder  is  presumed  to  assent  to  every  disposition  of  the  corporate  prop- 
erty made  by  the  corporation. 

It  is  not  pretended  that  the  defendant's  testator  ever  specifically  assented 
to  the  assignment  of  his  indebtedness  ;  but  reliance  is  placed  only  on  the 
general  authority  which  the  law  implies  from  the  stockholders  to  their 
common  agent,  the  corporation,  to  use  the  property  of  the  concern  in  the 
conduct  and  settlement  of  its  business,  which,  it  is  claimed,  would  include 
the  power  to  assign  it  in  payment  of  debts. 

But  this  does  not  advance  us  a  step.  Whether  the  power  thus  to  deal 
with  the  property  be  said  to  be  given  by  the  law  or  to  rest  upon  an  implied 
assent  or  authority  of  the  stockholders,  it  cannot  amount  to  more  than  an 
authority  to  deal  with  the  property  in  such  manner  as  the  subject-matter 
will  admit  of  ;  in  other  words,  to  make  such  assignments  as  the  nature  of 
the  property  will  allow,  which,  in  the  case  of  choses  m  action  would  be 
merely  equitable. 

In  the  case  of  choses  in  action,  consisting  of  debts  due  by  strangers,  the 
stockholders  could  not  authorize  any  other  assignment  of  them  than  the  law 


868  DEVLIN   V.    THE   CITY   OF   NEW   YORK.      [CHAP.  III. 


CHARLES  DEVLIN,  Appellant,  v.  THE  MAYOR,  ALDER- 
MEN AND  COMMONALTY  OF  THE  CITY  OF  NEW 
YORK,  ef  a/.,  Appellants. 

In  the  Court  of  Appeals  of  New  York,   October  5,  1875. 
[Repor/ed  in  63  New   York  Reports  8  ] 

Appeal  from  judgment  of  the  General  Term  of  the  Court  of 
Common  Pleas  for  the  city  and  county  of  New  York,  entered 
upon  an  order  reversing  a  judgment  in  favor  of  plaintiff  entered 
upon  the  report  of  a  referee,  and  directing  judgment  absolute 
in  favor  of  defendant  The  Mayor,  etc. 

permits,  as  before  explained.  In  the  case  of  debts  due  by  the  stockholders 
themselves,  why  should  a  different  presumption  exist  or  a  different  lule 
apply  ? 

The  stockholder  occupies  a  double  relation  to  the  company.  Qua  debtor, 
he  has  not  promised  to  pay  to  the  company's  order  or  to  its  assignee,  but  to 
the  company  only.  Qtia  stockholder,  he  cannot  be  held  to  have  given 
more  than  the  general  authority  to  the  corporation  to  deal  with  its  property, 
which  I  have  already  mentioned,  and  which  is  consistent  with  the  rules  of 
law  as  to  choses  in  action. 

If  we  go  further  than  this,  we  must  hold  that  the  mere  fact  of  being  a 
stockholder  in  a  corporation  makes  his  indebtedness  a  negotiable  one,  even 
against  the  terms  of  his  agreement  with  the  company  and  the  intention  of 
the  parties.  Thus,  if  a  stockholder  borrowed  money  from  the  company  on 
his  sealed  bond,  the  argument  would  be  that  as  his  bond  is  a  part  of  the 
assets  of  the  company  and  he  has  generally  and  impliedly  assented  to  the 
assignment  or  negotiation  of  its  property,  as  it  may  think  best,  ergo,  his 
bond  may  be  negotiated  like  a  promissory  note. 

But  this  reasoning  would  not  stop  at  corporations.  It  would  apply  equally 
to  partnerships.  Each  member  of  a  partnership  is  the  agent  of  all,  and  all 
the  others  are  the  agents  of  each,  and  all  or  each  would  have  authority  to 
settle  debts  by  the  assignment  of  property  of  the  firm.  If,  then,  one  be- 
comes indebted  to  the  firm  on  an  open  account,  the  firm,  on  the  principles 
before  mentioned,  could  assign  or  negotiate  the  debt,  and  so  give  the 
assignee  a  right  of  action  in  his  own  name.  In  such  action  the  plaintiff, 
after  stating  the  original  indebtedness  and  its  assignment,  which  would 
make  a  demurrable  case,  would  only  have  to  supplement  it  by  an  averment 
that  the  debtor  was  a  member  of  the  firm  who  made  the  assignment,  and 
his  case  would  be  complete.  It  is  hardly  necessary  to  say  that  this  would 
be  a  novelty  in  the  law  of  contracts  and  actions  and  pleadings,  for  which 
not  a  semblance  of  authority  could  be  found. 

The  decree  in  the  Chancery  Court  of  Richmond  cannot  affect  the  ques- 
tion. We  have  no  doubt  of  the  right  of  the  corporation  to  make  a  general 
assignment  of  all  its  assets,  which  would  include  an  equitable  assignment 
of  its  choses  in  action,  to  trustees,  for  the  benefit  of  creditors  without  the 
concurrence  of  the  stockholders.  Nor  do  we  doubt  the  authority  of  any 
court,  having  obtained  jurisdiction  over  the  corporation  to  require  it  to  do 
what  it  might  do  voluntarily,  to  decree  a  transfer  of  its  assets  to  a  trustee 


SEC.  II.]  DEVLIN   Z'.    THE   CITY   OF   NEW   YORK.  869 

This  action  was  brought  by  plaintiff,  as  assignee  of  an  interest 
in  a  contract,  made  between  the  corporation  of  the  city  of  New 
York  and  one  Andrew  J.  Hackley,  under  the  act  (cliap.  309, 
Laws  of  i860)  for  cleaning  the  streets  of  said  city.  The  other 
defendants,  it  was  alleged,  claimed  interest  in  the  contract,  but 
refused  to  join  as  plaintiffs. 

By  the  contract,  which  was  made  February  26th,  1861,  the  con- 
tractor agreed  to  sweep  all  the  paved  streets,  avenues,  lanes, 
alleys,  etc.,  in  said  city  at  least  once  a  week,  Broadway  once 
every  twenty-four  hours,  and  some  other  streets  specified  twice 
a  week  for  the  term  of  five  years,  and  to  immediately  remove 
the  sweepings. 

or  to  remove  a  trustee  and  appoint  a  new  one,  and  vest  in  him  all  the  title 
which  the  corporation  may  have  given  to  a  former  one  without  having  the 
stockholders  before  them.  Nor  do  we  doubt  the  power  of  the  court  to  do 
what  the  president  and  directors  omitted  to  do,  to  wit  :  to  make  a  formal  call 
and  assessment  on  the  stockholders  on  account  of  their  unpaid  subscriptions 
for  the  benefit  of  creditors,  the  result  of  all  which  would  be  that  the  sub- 
stituted trustee  would  have  the  right,  and  it  would  be  his  duty,  to  call  on 
the  stockholders  for  the  assessment,  and,  on  their  refusal  to  pay,  to  institute 
suit  against  them  in  the  name  of  the  corporation. 

This  was  substantially  what  the  Chancery  Court  of  Richmond  ordered 
the  plaintiff  to  do  ;  that  is,  "  to  collect  and  receive  the  said  call  and  assess- 
ment, and  to  take  such  prompt  steps  to  that  end,  by  suit  or  otherwise,  and 
in  such  jurisdictions  as  he  may  be  advised." 

It  is  not  altogether  clear  that  the  court  meant  to  decree  that  he  was 
entitled  to  sue  in  his  own  name  or  to  order  him  to  do  so. 

If  the  court  is  to  be  so  understood,  we  do  not  hesitate  to  say  that  the 
decree  is  void,  as  to  the  stockholders,  in  this  respect  for  want  of  jurisdiction, 
because  they  were  not  parties  to  the  suit. 

Undoubtedly  in  its  relations  to  third  persons,  the  corporation  represents 
the  stockholders,  and  it  is  not  necessary  to  make  the  latter  parties  to  a  suit 
in  order  to  obtain  a  decree  or  judgment  against  the  corporation  which  may 
be  enforced  against  the  tangible  corporate  property. 

But  where  rights  are  to  be  determined  as  between  the  corporation  and 
the  stockholder,  where  the  latter  have  an  adversary  interest,  and  his  prop- 
erty may  be  affected,  it  is  evident  that  no  decree  can  bind  him  in  a  suit  to 
which  he  is  not  personally,  instead  of  by  representation,  made  a  party. 

For  example,  his  indebtedness  to  the  corporation  could  not  be  gar- 
nisheed  by  a  creditor  by  a  proceeding  in  the  common  law  courts  or  its 
equivalent  in  an  equity  court  without  serving  process  on  him. 

And,  while  a  court  might  compel  the  coporation  to  make  such  a  transfer 
of  his  debt  as  it  might  make  voluntarily  without  his  concurrence,  no  court 
could,  by  force  of  its  own  decree  alone,  convert  his  indebtedness  to  tlie  cor- 
poration into  an  indebtedness  to  some  one  else  without  even  notifying  him. 
If  it  could  do  this,  it  would  have  little  difficulty  in  going  a  step  further  and 
make  a  money  decree  against  him  without  giving  him  his  day  in  court. 

We  have  been  referred  to  a  number  of  cases  in  which  suits  similar  to  the 
present  have  been  sustained  in  the  State  and  Federal  courts. 

But  the  present  question  does  not  seem  to  be  discussed  in  any  of  the 
opinions  rendered  except  in  Glenn  v.  Scott,  in  the  Circuit  Court  for  the 


8/0  DEVLIN   V.   THE   CITV    OF   NEW    YORK.       [chap.  III. 

The  contract  contained  these  clauses  : 

"  When  the  performance  of  such  work  is  impracticable  from 
the  state  of  the  weather  the  city  inspector  may,  from  time  to 
time  in  writing,  designate  a  later  hour  for  the  work,  or  dispense 
with  the  same  temporarily  ;  but  he  shall  not  grant  such  dis- 
pensation for  a  period  longer  than  one  week  from  the  date 
thereof. 

"  Section  7.  The  streets  shall  be  kept  conveniently  passable  for 
vehicles  during  the  winter  ;  and  the  crosswalks,  and  all  gutters 
intersecting  the  same  shall  be  kept  clear  of  snow  and  ice." 

The  referee  found  a  substantial  performance  of  the  contract 
up  to  May  i6th,  1863  ;  that  there  were  certain  periods  of  the  year 

Western  District  of  Virginia.  In  that  case  the  declaration  averred  the 
assignment  of  the  subscriptions  of  the  defendant  stockholder  to  the  trustees, 
and  that  the  defendant  had  assented  to  it  just  as  in  this  case. 

The  case  came  before  the  court  on  a  demurrer  to  the  declaration,  which 
admitted  the  plaintiff's  case — as  the  present  case  did  in  the  court  below — 
and  the  court  could  do  nothing  else  than  render  judgment  against  the  defend- 
ants. Bond,  J.,  also  held  the  case  to  be  within  the  code  of  Virginia  of  1S73, 
which,  in  this  respect,  only  repeals  the  code  of  1849,  and  provides  that  : 

"  The  assignee  of  any  bond,  note,  or  writing  not  negotiable,  may  main- 
tain an  action  thereon  in  his  own  name  which  the  original  obligee  or  payee 
might  have  brought. ' ' 

If,  however,  it  is  attempted  to  apply  that  law  to  the  present  case,  it  is 
seen  that  a  conflict  of  law  arises.  By  our  law,  which  is  the  common  law, 
no  such  action  can  be  maintained,  and  the  question  is  whether  the  Virginia 
code  or  our  common  law  is  to  determine  the  right  to  sue. 

If  the  code  determines  the  contract  right  of  the  parties  and  operates  upon 
the  title  it  must  prevail  if  this  is  to  be  considered  a  Virginia  contract.  If  it 
goes  only  to  the  remedy,  the  lex  fori  must  prevail.  We  are  relieved  from 
any  trouble  upon  this  question  by  the  decisions  of  the  court  of  last  resort  of 
Virginia  upon  the  effect  of  her  code. 

The  following  cases  were  decided  in  1S57,  when  the  code  of  1S49  was  still 
in  force,  and  was  the  law  governing  the  subscriptions  in  this  case. 

In  Davis  v.  Miller,  14  Gratt.,  13,  the  court  said  : 

"The  code  declares  that  'the  assignee  of  any  bond,  note,  or  writing, 
not  negotiable,  may  maintain  any  action  thereon  in  his  own  name,  which 
the  original  obligee  or  payee  might  have  brought.'  This  section  is  the. 
same  in  effect  with  i  Revised  Code,  ch.  126,  par.  5.  It  applied  only  to 
writings  not  negotiable,  and  its  only  effect  is  to  authorize  the  assignee  of 
such  writings  to  sue  at  law  in  his  own  name.  The  legal  title  still  remains 
in  the  assignor  in  whose  name  the  suit  at  law  may  be  brought. ' ' 

The  case  of  Clarkson  v.  Doddridge,  14  Gratt.,  42,  was  an  action  by  cer- 
tain commissioners  in  chancery  on  a  bond,  for  purchase  money  for  prop- 
erty sold  by  them.  The  plea  was  that,  by  a  subsequent  decree,  other  com- 
missioners had  been  appointed  in  their  place,  so  that  the  bond  had  been,  by 
the  action  of  the  court,  assigned  to  the  latter,  and  the  question  was 
whether  the  action  ought  not  to  be  brought  by  them.     The  court  said  : 

"  Was  the  action  properly  brought  in  the  names  of  the  commissioners  to 
whom  the  bonds  were  payable?  Or  ought  it  to  have  brought  in  the 
names  of  the  new  and  substituted  commissioners  ? 


SEC.  n.]  DEVLIN   V.   THE   CITY   OF   NEW   YORK.  8/1 

when  snow  and  ice  accumulated  to  such  an  extent  that  the 
streets  could  not  be  swept  or  thoroughly  cleaned  without  re- 
moving the  ice  and  snow  out  of  the  city,  at  which  times  the 
contractor  did  not  sweep  once  a  week,  but  he  kept  the  streets 
conveniently  passable  for  vehicles,  and  kept  the  crosswalks  and 
gutters  at  the  intersection  thereof  clear  ;  that  on  May  i6th,  1863, 
the  corporation  forbade,  stopped  and  prevented  the  contractor 
from  doing  any  more  work  under  the  contract,  notified  him 
that  the  contract  was  rescinded,  and  refused  to  make  any 
further  payments  thereon. 

Upon  the  trial  evidence  was  offered,  on  the  part  of  plaintiff, 
on  the  question  of  damages,  and  received  under  objection,  show- 

"  It  is  a  general  rule  that  an  action  on  a  contract  must  be  brought  in  the 
name  of  the  party  in  whom  the  legal  interest  in  such  contract  is  vested. 
The  legislature  alone  has  power  to  make  an  exception  to  this  rule.  An 
exception  is  made  by  the  Code,  ch.  144,  sec.  14,  par.  5S3,  which  authorizes 
the  assignee  of  any  bond,  note  or  writing,  not  negotiable,  to  maintain 
thereupon  any  action  in  his  own  name  which  the  original  obligee  or  payee 
might  have  brought.  The  assignee  acquires  only  an  equitable  right  with  a 
capacity,  expressly  given  him  by  statute,  to  assert  it  at  law  in  his  own 
name.  But  the  legal  title  still  remaining  in  the  obligee  or  payee,  a  right  of 
action  is  incident  thereto  ;  and  the  assignee  may,  at  his  election,  sue  at  law 
in  his  own  name  or  in  that  of  the  obligee  or  payee  for  his  benefit.  Garland 
V.  Richardson,  4  Rand.,  266.  Another  exception  seems  to  be  made  by  the 
Code,  ch.  116,  sec.  2,  par.  500. 

"It  is  also  a  general  rule  that  the  legal  interest  in  an  obligation  for  the 
payment  of  money  is  vested  in  the  obligee  or  his  personal  representative. 
The  exceptions  to  this  rule  also  must  be  derived  from  the  statute  law,  and 
are  few  in  number.  An  exception  arises  in  England  under  the  statute  of 
bankruptcy,  which  expressly  vests  the  bankrupt's  right  of  property  and  of 
action  in  his  assignees,  who  may  therefore  maintain  in  their  own  name  an 
action  on  a  bond  payable  to  the  bankrupt.  A  bond  payable  to  a  corpora- 
tion aggregate  is  not  an  exception  to  the  rule,  though  an  action  thereon 
must  be  brought  in  the  name  of  the  corporation,  and  not  of  the  persons 
composing  it  when  the  bond  is  executed,  or  their  personal  representatives. 
The  corporation  itself,  and  not  the  persons  composing  it,  is  the  obligee  ; 
and  the  case  therefore  falls  within  the  rule  and  not  the  exceptions.  A 
different  rule  is  said  to  be  applicable  to  a  bond  payable  to  a  jjerson  who  is  a 
corporation  sole  ;  in  which  case  an  action  at  law  upon  the  bond  must,  after 
his  death,  be  brought  in  the  name  of  his  personal  representative,  and  not 
of  his  successor.  There  is  a  strong  instance  of  this  kind  in  a  case  very 
recently  decided  by  the  Court  of  Queen's  Bench,  in  which  it  was 
held  that  a  bond,  given  to  the  ordinary  by  an  administrator  under  the 
statute  of  distributions,  passes,  on  the  ordinary's  death,  to  his  personal 
representative,  and  not  to  his  successor.  Howley  v.  Knight,  14  Adolph.  & 
El.  240  ;  63  Eng.  C.  L.,  23S. 

"  In  the  case  under  consideration,  the  bonds  are  payable  to  Miller  and 
Doddridge,  the  old  commissioners,  in  whom,  therefore,  by  the  very  terms 
of  the  bonds,  and  according  to  the  general  rule  of  law  before  stated,  the 
legal  interest  in  and  right  of  action  on  the  bonds  were  vested.  There  is  no 
law  in  existence  which  divests  this  legal  interest  and  right  of  action.     The 


872  DEVLIN  V.  THE  CITY  OF  NEW   YORK.      [cHAP.  ill. 

ing  sub-contracts  for  portions  of  the  work  made  by  the  con- 
tractor with  other  parties,  and  the  prices  for  which  the  latter 
contracted  to  do  the  same. 

The  referee  directed  judgment  for  a  balance  found  to  have 
been  earned  under  the  contract  at  the  time  it  was  so  rescinded, 
and  for  a  sum  determined  upon  as  the  net  profits  the  contractor 
might  have  made  under  the  contract  had  he  been  permitted  to 
complete  it. 

Judgment  was  entered  accordingly. 

Geo.  F.  Comstock  and  D.  C.  Cronin  for  the  appellants. 

Dexter  A.  Haivkins  for  the  respondents. 

Allen,  J.  The  referee  has  found  the  making  of  the  contract 
as  alleged,  the  performance  thereof  by  Hackley,  from  the  mak- 
ing  thereof  in  February,  1861,  until  May,  1863,  an  ability, 
readiness  and  offer  by  him  to  perform  the  contract  for  the  un- 
expired term  thereof,  and  that  he  was,  in  May,  1863,  without 
cause,  ejected  by  the  respondents  from  the  work,  and  by  them 
prevented  from  proceeding  in  the  performaYice  of  the  agree- 
ment. He  has  also  found  the  amount  due  and  unpaid  for  work 
actually  done  at  the  time  of  the  interference  by  the  respondents, 
and  the  damages  sustained  by  the  parties  in  interest  by  reason 
of  the  breach  of  the  contract  by  the  respondents.     The  referee 

court  of  chancery,  it  is  true,  was  authorized  by  law  to  substitute  new  in 
place  of  old  commissioners.  But  the  effect  of  such  substitution  was  not  to 
transfer  the  legal  interest  in  the  bonds  from  the  old  to  the  new  commis- 
sioners. It  only  authorized  the  new  commissioners,  upon  giving  the  se- 
curity required  by  law,  to  collect  the  bonds,  and  to  bring  suit,  if  necessary, 
for  the  recovery  thereof,  in  the  names  of  the  old  commissioners.  The  right 
of  the  new  commissioners  to  receive  the  money  does  not  imply  a  right  to 
bring  an  action  therefor  in  their  own  names.  A  person  may  have  a  right 
to  receive  money  without  any  corresponding  right  to  bring  an  action  for  it 
in  his  own  name. 

"  This  happens  whenever  a  chose  in  action,  not  negotiable  by  the  law 
merchant,  and  not  coming  under  the  provisions  in  the  Code,  ch.  144,  sec. 
14,  is  assigned.  The  as^gnee  has  a  right  to  receive  the  money,  but  not  to 
bring  an  action  therefor  in  his  own  name.  He  has,  however,  an  ample 
remedy. 

"  He  has  a  right  to  bring  an  action  at  law  in  the  name  of  his  assignors  ; 
and  he  will  be  regarded,  even  by  a  court  of  law,  as  the  substantial  plaintiff 
in  the  action.  The  court  will  protect  his  rights,  and  will  not  permit  the 
nominal  plaintiff  to  receive  the  money,  nor  to  release  the  debt,  nor  to  dis- 
miss the  action.     The  same  principle  applies  to  this  case. 

"  The  circuit  court  was  therefore  right  in  saying  that  the  present  com- 
missioners have  a  right  to  sue  upon  the  bonds  in  the  name  of  Miller  and 
Doddridge,  the  obligees." 

Bond,  J.,  must  have  taken  the  same  view,  since  he  rests  his  opinion 
on  the  Code  of  1873,  which  was  adopted  seven  years  after  these  subscrip- 
tions were  made.  He  could  hardly  have  held  that  to  operate  retrospectively 
on  the  contract  while  it  clearly  could  on  the  remedy. 


SEC.  II.]  DEVLIN   Z'.    THE   CITY   OF   NEW   YORK.  873 

has  not  found  that  the  contract  was  procured  by  bribery  or  fraud, 
or  any  fact  set  up  by  the  respondents  as  an  affirmative  defence 
to  the  action,  and  was  not  requested  by  the  respondents  to  find 
any  such  fact,  or  any  fact.  The  Court  of  Common  Pleas  of  the 
city  of  New  York,  from  whose  judgment  this  appeal  is  taken, 
found  no  error  in  the  findings  and  conclusions  of  fact  by  the 
referee,  but  reversed  his  judgment  solely  for  errors  of  law. 
The  conclusions  of  the  referee  upon  the  evidence,  and  his  find- 
ings of  fact,  not  disaffirmed  by  the  court  below  in  reversing  his 
judgment,  are  therefore  not  reviewable  by  this  court.  We  are 
concluded  upon  every  question  of  fact  by  the  findings  of  the 
referee  and  the  judgment  of  the  court  of  original  jurisdiction. 
Code,  §§  272,  511. 

Upon  the  adjudged  facts  the  plaintiff  and  the  defendants, 
appellants,  the  assignees  of  Hackley  were  entitled  to  recover 
unless  there  is  some  legal  impediment,  and  were  entitled  to 
retain  the  judgment  given  by  the  referee,  unless  for  some  reason 
no  action  at  law  could  be  maintained  for  the  work  actually 
performed,  or  upon  the  agreement  for  a  breach  thereof,  or 
some  material  error  was  committed  by  the  referee  upon  the 
trial  to  the  prejudice  of  the  respondents. 

But  two  objections  to  the  recovery  against  the  city,  the  present 
defendant,  were  considered  by  the  court  below  in  the  opinion 

Apart  from  the  Code  of  Virginia,  it  is  admitted  that  the  equitable  title  to 
a  chose  in  action  can  be  assigned  so  that  the  assignee  may  institute  a'  suit 
at  common  law  in  the  assignor's  name  for  his  use.  According  to  the  de- 
cisions just  referred  to,  the  Code  makes  no  change  in  the  title,  but  super- 
adds to  the  remedy  just  mentioned  a  right  of  action  by  the  assignee  in  his 
own  name. 

This,  then,  clearly  relates  to  the  remedy  only,  and  the  rule  applies  which 
Dr.  Wharton  lays  down  in  his  "  Conflict  of  Laws,"  sec.  735.  as  follows,  viz.  : 

"  Whether  an  assignee  can  sue  in  his  own  name  is  sometimes  a  technical 
question,  and  sometimes  one  that  is  essential.  When  it  is  technical  (/.  e., 
when  the  point  is  merely  whether  the  suit  is  to  be  brought  by  A.  to  the  use 
of  B.,  or  by  B.  immediately,  there  being  no  dispute  that  the  title  as  between 
the  two  is  virtually  in  B.),  then  the  lex  fori  is  to  decide.  It  is  a  mere 
matter  of  process.  If  allowed  by  the  lex  fori,  the  assignee  may  sue  in  his 
own  name,  although  forbidden  by  the  foreign  law  to  which  the  obligation  is 
subject.  If  forbidden  by  the  lex  fori,  the  assignee  cannot  sue  in  his  own 
name,  though  permitted  to  do  so  by  the  foreign  law  to  which  the  obligation 
is  subject."  See,  also,  to  the  same  effect,  Story's  Conflict  of  Laws,  sees. 
293.  332,  and  473. 

And  so  here  we  assume  that  the  plaintiff  is  entitled  to  sue  for  the  unpaid 
subscriptions  to  the  extent  called  for,  and  the  qtiestion  is  whether  he  shall 
sue  in  his  own  name  or  in  that  of  the  corporation  to  his  use.  By  the  law  of 
this  District  he  must  do  the  latter,  and  that  is  the  law  of  this  case. 

We  have  not  deemed  it  necessary  to  express  an  opinion  upon  any  of  the 
other  questions  in  the  case,  but  judgment  must  be  entered  for  the  defend- 
ant.— Cox,  J.,  Glenn  v.  Busey,  5  Mack.,  233,  241-249. — Ed. 


874  DEVLIN   V.    THE   CITY   OF   NEW   YORK.      [CHAP.  in. 

annexed  to  the  record  before  us,  and  they  being  regarded  as  in- 
superable and  fatal  to  the  action,  the  judgment  of  the  referee 
was  reversed  and  judgment  absolute  given  for  the  city.  These 
objections  were  :  First,  that  the  contract  between  the  city  and 
Hackley  was  not  assignable,  and  that  the  assignment  by  the 
original  contractor,  of  itself,  terminated  the  contract  and  justi- 
fied the  action  of  the  city  authorities  in  refusing  longer  to  be 
bound  by  it." 

The  first  objection,  if  well  taken,  was  not  necessarily  fatal  to 
the  action,  but,  at  most,  would  only  have  authorized  the  send- 
ing of  the  case  back  for  a  retrial.  It  might  have  been  waived 
by  the  city.  There  was  nothing  in  the  spirit  or  letter  of  the 
statute  authorizing  the  contract,  or  public  policy,  to  prohibit 
the  assignment,  with  the  assent  of  the  city  authorities,  so  long 
as  the  city  retained  the  personal  obligation  of  the  original  con- 
tractor and  his  sureties  for  its  faithful  performance.  There 
was  evidence  which  would  have  authorized — and  had  he  been 
called  upon,  would  have  required — the  referee  to  find  a  waiver 
of  all  objections,  if  not  an  express  assent  to  the  assignment  now 
claimed  to  be  fatal  to  this  action,  and  to  any  recovery  for  work 
done. 

Aside  from  dealings  with,  and  payments  to,  the  assignees,  the 
common  council,  in  their  proceedings,  directly  recognize  the 
fact  that  the  interest  of  Hackley  in  the  contract  had  passed  into 
other  hands,  and  in  giving  the  notice  and  assigning  the  reasons  for 
terminating  the  contract,  no  notice  is  taken  of  the  assignment, 
but  the  sole  reason  alleged' is  the  non-performance  of  the  agree- 
ment by  the  contractor.  The  city,  by  the  acts  of  its  agents, 
waived  the  objection  that  the  contract  was  not  assignable,  and 
the  reason  assigned  for  terminating  the  contract  has  been  found 
to  be  untrue  in  fact.  Murray  v.  Harway,  56  N.  Y.  337  ;  Ire- 
land V.  Nichols,  46  N.  Y.  413. 

There  was  certainly  no  reason  why  there  should  not  have 
been  a  recovery  of  the  moneys  actually  earned,  even  if  the  con- 
tract had  been  terminated  for  every  other  purpose.  But  it  is 
palpable  that  the  city  had  no  thought  of  objecting  to  the  further 
prosecution  of  the  contract  for  the  reason  that  it  had  been 
assigned,  or  that  it  was  not  assignable.  The  question,  however, 
whether  the  assignment  by  the  original  contractor  terminated 
the  contract,  or  authorized  the  refusal  of  the  city  longer  to  be 
bound  by  it,  still  remains  to  be  considered,  as  the  waiver  has 
not  been  found  by  the  referee.  An  assignment  by  the  con- 
tractor of  the  amounts  which  would  have  become  due  from  the 
city  from  time  to  time,  made  before  the  doing  of  the  work  or 
'  Only  so  much  of  the  opinion  is  given  as  relates  to  this  objection. — Ed. 


SEC.  II.]  DEVLIN   V.   THE   CITV    OF   NEW   YORK.  875 

the  performance  of  the  conditions  upon  which  the  payments 
depended,  would,  under  the  liberal  rule  permitting  the  assign- 
ment of  choses  in  action  now  prevailing,  be  valid.  Expectan- 
cies, as  well  as  existing  rights  of  action,  may  be  assigned,  and 
the  rights  of  the  assignees  will  be  protected  and  enforced  at  law. 
Field  V.  Mayor,  etc.,  2  Seld.,  179  ;  Hall  v.  Buffalo,  2  Abb.  Ct. 
of  App.  Dec,  301.  An  assignment  may  include  all  contingent 
and  incidental  benefits  or  results  of  an  executory  contract,  as 
well  as  the  direct  fruits  or  earnings  under  it,  and  thus  entitle 
the  assignee  to  the  damages  resulting  from  a  violation  of  its 
terms.  The  right  of  action  for  a  breach  of  the  contract,  result- 
ing in  pecuniary  loss  to  the  contractor,  would  survive  to  the 
personal  representatives  of  the  aggrieved  party,  and  that  is  one 
test  of  the  assignability  of  contracts  and  choses  in  action. 
Byxbie  v.  Wood,  24  N.  Y.,  607  ;  McKee  v.  Judd,  2  Kern.,  622  ; 
Zabriskie  v.  Smith,  3  Kern.,  322.  In  principle  it  would  not  im- 
pair the  rights  of  the  assignee,  or  destroy  the  assignable  quality 
of  the  contract  or  claim,  that  the  assignee,  as  between  himself 
and  the  assignor,  has  assumed  some  duty  in  performing  the 
conditions  precedent  to  a  perfected  cause  of  action,  or  is  made 
the  agent  or  substitute  of  the  assignor  in  the  performance  of 
the  contract.  If  the  service  to  be  rendered  or  the  condition  to 
be  performed  is  not  necessarily  personal,  and  such  as  can  only 
with  due  regard  to  the  intent  of  the  parties,  and  the  rights  of 
the  adverse  party,  be  rendered  or  performed  by  the  original 
contracting  party,  and  the  latter  has  not  disqualified  himself 
from  the  performance  of  the  contract,  the  mere  fact  that  the 
individual  representing  and  acting  for  him  is  the  assignee,  and 
not  the  mere  agent  or  servant,  will  not  operate  as  a  rescission  of, 
or  constitute  a  cause  for  terminating  the  contract.  Whether 
the  agent  for  performing  the  contract  acts  under  a  naked 
power,  or  a  power  coupled  with  an  interest,  cannot  affect  the 
character  or  vary  the  effect  of  the  delegation  of  power  by  the 
original  contractor.  Hackley,  the  original  contractor,  was  at 
no  time  discharged  from  his  obligations  to  the  city,  nor  was  he 
disqualified  for  the  performance  of  the  contract  ;  but  was  at  all 
times  in  a  position  to  perform  his  part  of  this  agreement,  facts 
which  distinguish  this  case  from  Stevens  v.  Benning,  6  De  G., 
M.  &  G.,  223,  and  Robson  v.  Drummond,  2  Barn.  &  Ad.,  303. 
Stevens  z'.  Benning  is  distinguished  from  the  present  by  the 
additional  circumstances  that  the  contract  in  the  case  cited  was 
in  its^  nature  personal,  and  was  made  in  reference  to  the  char- 
acter and  facilities  of  the  contracting  firm  as  a  publishing 
house,  and  was  in  the  nature  of  a  partnership  in  so  far  as  it 
provided  for  a  division  of  the  profits  of  the  work  to  be  pub- 


876  DEVLIN   V.    THE    CITY    OF   NEW    YORK.       [cHAP.  III. 

lished.  In  Robson  v.  Drummond  the  defendant  had  agreed  to 
pay  annually  in  advance  for  the  use  of  the  carriage  to  be  fur- 
nished by  Sharpe,  a  coachmaker,  and  was  not  bound,  after 
notice  of  his  withdrawal  from  and  assignment  of  the  contract 
to  Robson,  to  trust  to  the  ability  or  integrity  of  the  assignee  ; 
and  the  court  also  held  that  the  contract  was  one  for  the  personal 
service  of  Sharpe,  and  that  the  defendant  was  entitled  to  his 
judgment  and  taste  to  the  end  of  the  contract.  It  is  not  dis- 
puted that  in  all  cases  when  the  executor  or  administrator 
would  succeed  to  the  rights  and  liabilities  of  a  deceased  party 
to  a  contract,  the  contract  is  assignable  by  the  act  of  the 
parties,  the  personal  representatives  of  a  decedent  being  re- 
garded but  the  legal  assignee  upon  whom  the  law  devolves  the 
rights  and  obligations  of  their  testator  or  intestate.  In  one  case 
in  which  the  executory  obligations  of  deceased  parties  have  been 
sought  to  be  enforced  against  their  personal  representative,  the 
question  has  been  said  to  be  one  of  construction  depending 
upon  the  intention  of  the  parties,  and  that  we  are  without  any 
well-defined  rule  on  the  subject.  Dickinson  v.  Calahan's 
Admrs.,  19  Penn.  St.  Rep.,  227.  In  some  cases  in  which  ex- 
ecutors and  administrators  have  assumed  the  contracts  of  their 
testators  or  intestate,  and  after  performance  sought  to  recover 
the  stipulated  compensation,  the  question  has  been  one  of 
pleading  rather  than  of  principle.  Edwards  v.  Grace,  2  M.  & 
,W.,  190.  The  assignability  of  a  contract  must  depend  upon 
the  nature  of  the  contract  and  the  character  of  the  obligations 
assumed  rather  than  the  supposed  intent  of  the  parties,  except 
as  that  intent  is  expressed  in  the  agreement.  Parties  may,  in 
terms,  prohibit  the  assignment  of  any  contract  and  declare  that 
neither  personal  representatives  nor  assignees  shall  succeed  to 
any  rights  in  virtue  of  it,  or  be  bound  by  its  obligations.  But 
when  this  has  not  been  declared  expressly  or  by  implication, 
contracts  other  than  such  as  are  personal  in  their  character,  as 
promises  to  marry  or  engagements  for  personal  services  requir- 
ing skill,  science  or  peculiar  qualifications,  may  be  assigned, 
and  by  them  the  personal  representatives  will  be  bound.  In 
Hyde  v.  Windsor,  Cro.  Eliz.,  552,  it  was  said  that  executors 
are  bound  by  all  covenants  of  their  testator,  whether  named  or 
not,  "  unless  it  be  such  a  covenant  as  is  to  be  performed  by  the 
person  of  the  testator,  which  they  cannot  perform."  If  the 
contract  be  personal  and  the  performance  of  the  party  himself 
be  the  essence  thereof,  it  neither  devolves  upon  his  representa- 
tives, nor  can  it  be  assigned.  White's  Exrs.  v.  Commonwealth, 
39  Penn.  St.,  167.  When  the  contract  is  executory  in  its 
nature,  and  an  assignee  or  personal  representative  can  fairly 


SEC.  II.]  DEVLIN   V.   THE   CITY   OF   NEW   YORK.  877 

and  sufficiently  execute  all  that  the  original  contractor  could 
have  done,  the  assignee  or  representative  may  do  so  and  have 
the  benefit  of  the  contract.  Quick  v.  Ludbaum,  3  Bulst.,  30, 
adjudged  a  contract  to  build  a  house  binding  upon  the  ex- 
ecutors. This  case  has  been  criticised,  and  sometimes  its 
authority  questioned,  but  the  modern  cases  in  England  and  the 
decisions  of  the  courts  of  this  State  are  in  harmony  with  it.  It 
is  cited  with  approval  in  Siboni  v.  Kirkman,  i  M.  &  W.,  417, 
and  in  many  other  cases.  The  act  of  God  in  the  death  of  the 
party  does  not  dissolve  the  contract  or  excuse  performance, 
except  in  the  case  of  a  contract  requiring  personal  service,  and 
then  the  law  will  imply  an  exception.  In  the  case  last  referred 
to  executors  were  held  entitled  to  enforce  a  contract  for  the 
exchange  of  pianos  made  by  their  testator  twenty  years  before 
the  bringing  of  the  action.  There  may  be  cases  in  which  the 
executor  may  not  be  compellable  to  perform  a  contract  of  his 
testator,  and  yet  may  elect  to  do  so  and  entitle  himself,  in  his 
representative  capacity,  to  the  compensation.  Marshall  v. 
Broadhurst,  i  Cr.  &  J.,  403  ;  S.  C,  i  Tyrwhitt,  348,  was  for 
work  and  materials  in  building  a  house  which  the  testator  of 
plaintiff  had  agreed  to  build,  but  died  before  the  work  was 
begun  and  the  plaintiffs  were  held  entitled  to  recover.  The 
court  say,  that  in  case  of  such  a  contract,  if  the  executors  do 
not  go  on  they  will  be  liable  to  damages  for  not  completing  the 
work,  and  if  they  go  on  they  may  recover  as  executors.  See, 
also,  Wentworth  v.  Cock,  10  A.  &  E.,  42.  In  the  latter  case 
Pattison,  J.,  refers  to  a  case  at  Liverpool  where  a  contract  to 
build  a  light-house  was  held  to  be  personal,  and  therefore  not 
assignable,  but  solely  on  the  ground  of  its  being  a  matter  of 
personal  skill  and  science,  clearly  implying  that  but  for  that 
element  in  the  contract  it  would  have  been  assignable.  Sears  Z'. 
Conover,  34  Barb.,  331,  was  not  unlike  Wentworth  v.  Cock, 
except  that  the  action  was  an  action  by  the  assignee  of  an  ex- 
ecutory contract  for  non-performance  by  the  other  party. 
Within  the  principle  of  the  adjudications  in  this  State  this  con- 
tract was  assignable.  The  executor  of  the  contract  would  have 
been  bound  to  perform  it  to  entitle  him  to  recover  what 
had  been  earned,  and  to  prevent  an  action  for  non-performance. 
It  was  a  contract  not  capable  of  being  performed  in  person  by 
Hackley.  At  most,  he  could  only  employ  workmen  and  appoint 
agents  and  overseers  of  the  work.  The  work  did  not  require  or 
call  for  the  exercise  of  any  peculiar  skill,  science  or  experience. 
It  was  by  law  all  to  be  done  under  the  directions  of  the  city  in- 
spector, who  may  be  supposed  to  have  been  in  possession  of  all 
the  local    knowledge  and  experience  essential  to   the  general 


g'-g  DEVLIN   V.   THE   CITY   OF   NEW   YORK.      [CHAP.  III. 

direction  of  the  work.  It  was  merely  the  servile  labor  of 
sweeping  and  cleaning  the  streets,  and  removing  the  garbage 
as  specified  in  the  agreement  and  under  the  general  supervision 
of  the  city  inspector,  that  the  contractor  engaged  for.  Work 
upon  the  canals  of  this  State,  either  in  their  repair  or  construc- 
tion calls  for  more  of  skill  and  scientific  knowledge,  as  well  as 
of  experience,  than  this  work  could  call  for,  and  yet  contracts 
for  that  class  of  work  have  been  recognized  as  assignable  by 
the  legislature  and  by  the  courts,  and  the  rights  of  assignees 
protected  and  enforced.  Munsell  v.  Lewis,  2  Den.,  224.  So 
contracts  for  the  labor  of  convicts  in  the  State  prisons  have  been 
expressly  held  assignable,  and  on  the  ground  that  notwith- 
standing the  intimate  personal  relations  that  must  exist  between 
the  contractor  and  the  convict  laborers,  and  their  presence  at 
all  times  within  the  prison  walls,  and  their  opportunities  of 
interfering  with  the  discipline  of  the  prison,  the  contract  is  not 
personal  in  its  character.  There  the  general  discipline  and 
government  of  the  prison  and  the  prisoners  was  with  the  warden 
and  other  officers,  while  here,  so  far  as  any  judgment  or  dis- 
cretion is  to  be  exercised,  it  was  with  the  city  inspector.  The 
circumstance  that  by  the  statute  in  this  case  the  contract  was 
to  be  awarded  as  the  common  council  should  deem  for  the  best 
interests  of  the  city,  does  not  distinguish  this  case  from  those 
referred  to.  This  provision  did  not  refer  to  the  person  of  the 
contractor,  but  to  the  terms  of  the  contract.  It  was  not  in- 
tended to  enable  the  common  council  to  be  a  respecter  of  per- 
sons and  to  give  the  contract  to  favorites,  but  to  give  them  a 
discretion  to  choose  between  different  proposals,  relieving  the 
authorities  from  the  necessity  of  awarding  the  contract  to  the 
lowest  bidder  irrespective  of  the  terms  of  the  contract,  the 
security  offered,  or  the  fairness  or  sufficiency  of  the  compensa- 
tion to  insure  performance  with  reasonable  certainty.  This 
statutory  provision  does  not  change  the  character  of  the  work 
or  import  into  the  contract  any  unusual  terms,  or  destroy  its 
.  assignability.  The  assignment  of  the  contract  and  the  interest 
\  of  the  contractor  under  it  did  not  terminate  the  agreement  or 
I  authorize  its  rescission  or  abandonment  by  the  city. 
All  concur. 
Judgment  accordingly. 


SEC.  II.]   B.  &  PARK  GATE  WAGON  COS,  V.   LEA  &   CO.       879 


THE    BRITISH    WAGON    COMPANY   AND    THE    PARK- 
GATE  WAGON  COMPANY  v.   LEA  &  CO. 

In  the  Queen's  Bench,  January  13,  1880. 
{^Reported  iti  Law  Reports,  5  Queen's  Bench  Division  149.J 

Special  Case,  the  material  part  of  which  is  stated  in  the  judg- 
ment of  the  Court. 

A.  Wills,  Q.C.  [Forbes  and  Lofi/iouse,  with  him),  for  the 
plaintiffs. 

A.  L.  Smith  [A.  Kingdon,  with  him),  for  the  defendants. 

The  judgment  of  the  Court  (Cockborn,  C.J.,  and  Manisty,  J.) 
was  delivered  by 

CocKBURN,  C.J.  This  was  an  action  brought  by  the  plaintiffs 
to  recover  rent  for  the  hire  of  certain  railway  wagons,  alleged 
to  be  payable  by  the  defendants  to  the  plaintiffs,  or  one  of 
them,  under  the  following  circumstances  : 

By  an  agreement  in  writing  of  February  loth,  1S74,  the  Park- 
gate  Wagon  Company  let  to  the  defendants,  who  are  coal  mer- 
chants, fifty  railway  wagons  for  a  term  of  seven  years,  at  a 
yearly  rent  of  ^600  a  year,  payable  by  equal  quarterly  pay- 
ments. By  a  second  agreement  of  June  13th,  1874,  the  company 
in  like  manner  let  to  the  defendants  fifty  other  wagons,  at  a 
yearly  rent  of  ^625,  payable  quarterly  like  the  former. 

Each  of  these  agreements  contained  the  following  clause  : 
"  The  owners,  their  executors,  or  administrators,  will  at  all 
times  during  the  said  term,  except  as  herein  provided,  keep 
the  said  wagons  in  good  and  substantial  repair  and  working 
order,  and,  on  receiving  notice  from  the  tenant  of  any  want  of 
repairs,  and  the  number  or  numbers  of  the  wagons  requiring 
to  be  repaired,  and  the  place  or  places  where  it  or  they  then  is 
or  are,  will,  with  all  reasonable  despatch,  cause  the  same  to  be 
repaired  and  put  into  good  working  order." 

On  October  24th,  1874,  the  Parkgate  Company  passed  a  reso- 
lution, under  the  129th  section  of  the  Companies  Act,  1862,  for 
the  voluntary  winding  up  of  the  company.  Liquidators  were 
appointed,  and  by  an  order  of  the  Chancery  Division  of  the 
High  Court  of  Justice,  it  was  ordered  that  the  winding-up  of 
the  company  should  be  continued  under  the  supervision  of  the 
Court. 

By  an  indenture  of  April  1st,  1878,  the  Parkgate  Company 
assigned  and  transferred,  and  the  liquidators  confirmed  to  the 
British  Company  and  their  assigns,  among  other  things,  all 
sums  of  money,  whether  payable  by  way  of  rent,  hire,  interest, 


88o  B.  &  PARK  GATE  WAGON  COS.  7>.  LEA  &  CO.  [cHAP.  in. 

penalty,  or  damage,  then  due,  or  thereafter  to  become  due,  to 
the  Parkgate  Company,  by  virtue  of  the  two  contracts  with  the 
defendants,  together  with  the  benefit  of  the  two  contracts,  and 
all  the  interest  of  the  Parkgate  Company  and  the  said  liquida- 
tors therein  ;  the  British  Company,  on  the  other  hand  covenant- 
ing with  the  Parkgate  Company  "  to  observe  and  perform  such 
of  the  stipulations,  conditions,  provisions,  and  agreements  con- 
tained in  the  said  contracts  as,  according  to  the  terms  thereof 
were  stipulated  to  be  observed  and  performed  by  the  Parkgate 
Company."  On  the  execution  of  this  assignment  the  British 
Company  took  over  from  the  Parkgate  Company  the  repairing 
stations,  which  had  previously  been  used  by  the  Parkgate  Com- 
pany for  the  repair  of  the  wagons  let  to  the  defendants,  and 
also  the  staff  of  workmen  employed  by  the  latter  company  in 
executing  such  repairs.  It  was  expressly  found  that  the  British 
Company  have  ever  since  been  ready  and  willing  to  execute, 
and  have,  with  all  due  diligence,  executed  all  necessary  repairs 
to  the  said  wagons.  This,  however,  they  have  done  under  a 
special  agreement  come  to  between  the  parties  since  the  present 
dispute  has  arisen,  without  prejudice  to  their  respective  rights. 

In  this  state  of  things  the  defendants  asserted  their  right  to 
treat  the  contract  as  at  an  end,  on  the  ground  that  the  Park- 
gate  Company  had  incapacitated  themselves  from  performing 
the  contract,  first,  by  going  into  voluntary  liquidation  ;  sec- 
ondly, by  assigning  the  contracts,  and  giving  up  the  repairing 
stations  to  the  British  Company,  between  whom  and  the  de- 
fendants there  was  no  privity  of  contract,  and  whose  services, 
in  substitution  for  those  to  be  performed  by  the  Parkgate  Com- 
pany under  the  contract,  they  the  defendants  were  not  bound 
to  accept.  The  Parkgate  Company  not  acquiescing  in  this  view, 
it  was  agreed  that  the  facts  should  be  stated  in  a  special  case 
for  the  opinion  of  this  Court,  the  use  of  the  wagons  by  the 
defendants  being  in  the  mean  while  continued  at  a  rate  agreed 
on  between  the  parties,  without  prejudice  to  either,  with  refer- 
ence to  their  respective  rights. 

The  first  ground  taken  by  the  defendants  is  in  our  opinion 
altogether  untenable  in  the  present  state  of  things,  whatever  it 
may  be  when  the  affairs  of  the  company  shall  have  been  wound 
up,  and  the  company  itself  shall  have  been  dissolved  under  the 
I  nth  section  of  the  Act.  Pending  the  winding-up,  the  com- 
pany is  by  the  effect  of  §§  95  and  131  kept  alive,  the  liquidator 
having  power  to  carry  on  the  business,  "  so  far  as  may  be 
necessary  for  the  beneficial  winding-up  of  the  company,"  which 
the  continued  letting  of  these  wagons,  and  the  receipt  of  the 
rent  payable  in  respect  of  them,  would,  we  presume,  be. 


SEC.  II.]       B.  &  PARK  GATE  WAGON  COS.  V.  LEA  &  CO.  88 1 

What  would  be  the  position  of  the  parties  on  the  dissolution 
of  the  company  it  is  unnecessary  for  the  present  purpose  to 
consider. 

The  main  contention  on  the  part  of  the  defendants,  however, 
was  that,  as  the  Parkgate  Company  had,  by  assigning  the  con- 
tracts, and  by  making  over  their  repairing  stations  to  the 
British  Company,  incapacitated  themselves  to  fulfil  their  obli- 
gation to  keep  the  wagons  in  repair,  that  company  had  no 
right,  as  between  themselves  and  the  defendants,  to  substitute 
a  third  party  to  do  the  work  they  had  engaged  to  perform,  nor 
were  the  defendants  bound  to  accept  the  party  so  substituted 
as  the  one  to  whom  they  were  to  look  for  performance  of  the 
contract  ;  the  contract  was  therefore  at  an  end. 

The  authority  principally  relied  on  in  support  of  this  con- 
tention was  the  case  of  Robson  v.  Drummond,*  approved  of 
by  this  Court  in  Humble  v.  Hunter.^  In  Robson  v.  Drum- 
mond'  a  carriage  having  been  hired  by  the  defendant  of  one 
Sharp,  a  coachmaker,  for  five  years,  at  a  yearly  rent,  payable 
in  advance  each  year,  the  carriage  to  be  kept  in  repair  and 
painted  once  a  year  by  the  maker — Robson  being  then  a  partner 
in  the  business,  but  unknown  to  the  defendant — on  Sharp  re- 
tiring from  the  business  after  three  years  had  expired,  and 
making  over  all  interest  in  the  business  and  property  in  the 
goods  to  Robson,  it  was  held,  that  the  defendant  could  not  be 
sued  on  the  contract — by  Lord  Tenterden  on  the  ground  that 
"  the  defendant  might  have  been  induced  to  enter  into  the  con- 
tract by  reason  of  the  personal  confidence  which  he  reposed  in 
Sharp,  and  therefore  might  have  agreed  to  pay  money  in 
advance,  for  which  reason  the  defendant  had  a  right  to  object 
to  its  being  performed  by  any  other  person  ;"  and  by  Little- 
dale  and  Parke,  JJ.,  on  the  additional  ground  that  the  defend- 
ant had  a  right  to  the  personal  services  of  Sharp,  and  to  the 
benefit  of  his  judgment  and  taste,  to  the  end  of  the  contract. 

In  like  manner,  where  goods  are  ordered  of  a  particular 
manufacturer,  another,  who  has  succeeded  to  his  business,  can- 
not execute  the  order,  so  as  to  bind  the  customer,  who  has  not 
been  made  aware  of  the  transfer  of  the  business,  to  accept  the 
goods.  The  latter  is  entitled  to  refuse  to  deal  with  any  other 
than  the  manufacturer  whose  goods  he  intended  to  buy.  For 
this  Boulton  v.  Jones*  is  a  sufficient  authority.  The  case  of 
R.obson  V.  Drummond^  comes  nearer  to  the  present  case,  but  is, 
we  think,  distinguishable  from  it.  We  entirely  concur  in  the 
principle  on  which  the  decision  in  Robson  v.  Drummond*  rests, 

•  2  B.  &  Ad.  303.  3  2  B.  &  Ad.  303.  5  2  B.  &  Ad.  303. 

'  12  Q.  B.  310.  ■*  2  H.  &  N.  564.  «  Ibid. 


882  B.  &  PARK  GATE  WAGON  COS.  V.  LEA  &  CO.  [cHAP.  III. 

namely,  that  where  a  person  contracts  with  another  to  do  work 
or  perform  service,  and  it  can  be  inferred  that  the  person  em- 
ployed has  been  selected  with  reference  to  his  individual  skill, 
competency,  or  other  personal  qualification,  the  inability  or 
unwillingness  of  the  party  so  employed  to  execute  the  work  or 
perform  the  service  is  a  sufficient  answer  to  any  demand  by  a 
stranger  to  the  original  contract  of  the  performance  of  it  by  the 
other  party,  and  entitles  the  latter  to  treat  the  contract  as  at  an 
end,  notwithstanding  that  the  person  tendered  to  take  the 
place  of  the  contracting  party  may  be  equally  well  qualified  to 
do  the  service.  Personal  performance  is  in  such  a  case  of  the 
essence  of  the  contract,  which,  consequently,  cannot  in  its 
absence  be  enforced  against  an  unwilling  party.  But  this  prin- 
ciple appears  to  us  inapplicable  in  the  present  instance,  inas- 
much as  we  cannot  suppose  that  in  stipulating  for  the  repair  of 
these  wagons  by  the  company — a  rough  description  of  work 
which  ordinary  workmen  conversant  with  the  business  would  be 
perfectly  able  to  execute — the  defendants  attached  any  impor- 
tance to  whether  the  repairs  were  done  by  the  company,  or  by 
any  one  with  whom  the  company  might  enter  into  a  subsidiary 
contract  to  do  the  work.  All  that  the  hirers,  the  defendants, 
cared  for  in  this  stipulation  was  that  the  wagons  should  be 
kept  in  repair  ;  it  was  indifferent  to  them  by  whom  the  repairs 
should  be  done.  Thus  if,  without  going  into  liquidation,  or 
assigning  these  contracts,  the  company  had  entered  into  a  con- 
tract with  any  competent  party  to  do  the  repairs,  and  so  had 
procured  them  to  be  done,  we  cannot  think  that  this  would 
have  been  a  departure  from  the  terms  of  the  contract  to  keep 
the  wagons  in  repair.  While  fully  acquiescing  in  the  general 
principle  just  referred  to,  we  must  take  care  not  to  push  it  be- 
yond reasonable  limits.  And  we  cannot  but  think  that,  in 
applying  the  principle,  the  Court  of  Queen's  Bench  in  Robson 
V.  Drummond'  went  to  the  utmost  length  to  which  it  can  be 
carried,  as  it  is  difficult  to  see  how  in  repairing  a  carriage  when 
necessary,  or  painting  it  once  a  year,  preference  would  be  given 
to  one  coachmaker  over  another.  Much  work  is  contracted  for, 
which  it  is  known  can  only  be  executed  by  means  of  subcon- 
tracts ;  much  is  contracted  for  as  to  which  it  is  indifferent  to 
the  party  for  whom  it  is  to  be  done,  whether  it  is  done  by  the 
immediate  party  to  the  contract,  or  by  some  one  on  his  behalf. 
In  all  these  cases  the  maxim  Qui  facit  per  alitim  facit  per  se 
applies. 

In  the  view  we  take  of  the  case,  therefore,  the  repair  of  the 
wagons,  undertaken  and  done  by  the  British   Company  under 

'  2  B.  &  Ad.  303. 


SEC.  II. J    ARK.  VAL.  SMELT'G  CO.  V.  BELDEx\   MIN'g  CO.  S83 

their  contract  with  the  Parkgate  Company,  is  a  sufficient  per- 
formance by  the  latter  of  their  engagement  to  repair  under 
their  contract  with  the  defendants.  Consequently,  so  long  as 
the  Parkgate  Company  continues  to  exist,  and,  through  the 
British  Company,  continues  to  fulfil  its  obligation  to  keep  the 
wagons  in  repair,  the  defendants  cannot,  in  our  opinion,  be 
heard  to  say  that  the  former  company  is  not  entitled  to  the 
performance  of  the  contract  by  them,  on  the  ground  that  the 
company  have  incapacitated  themselves  from  performing  their 
obligations  under  it,  or  that,  by  transferring  the  performance 
thereof  to  others,  they  have  absolved  the  defendants  from  fur- 
ther performance  on  their  part. 

That  a  debt  accruing  due  under  a  contract  can,  since  the  pass- 
ing of  the  Judicature  Acts,  be  assigned  at  law  as  well  as  equity, 
cannot  since  the  decision  in  Brice  v.  Bannister'  be  disputed. 

We  are  therefore  of  opinion  that  our  judgment  must  be  for 
the  plaintiffs  for  the  amount  claimed. 


ARKANSAS  VALLEY  SMELTING  COMPANY  v.  BELDEN 
MINING  COMPANY. 

In  the  Supreme  Court  of  the  United  States,  May  14,  1888. 
[Reported  in  127  United  States  Reports  379.] 

This  was  an  action  brought  by  a  smelting  company,  incor^ 
porated  by  the  laws  of  Missouri,  against  a  mining  company, 
incorporated  by  the  laws  of  Maine,  and  both  doing  business  in 
Colorado  by  virtue  of  a  compliance  with  its  laws,  to  recover 
damages  for  the  breach  of  a  contract  to  deliver  ore,  made  by 
the  defendant  with  Billing  &  Eilers,  and  assigned  to  the 
plaintiff.  The  material  allegations  of  the  complaint  were  as 
follows  : 

On  July  i2th,  1881,  a  contract  in  writing  was  made  between 
the  defendant  of  the  first  part  and  Billing  &  Eilers  of  the  second 
part,  by  which  it  was  agreed  that  the  defendants  should  sell 
and  deliver  to  Billing  &  Eilers  at  their  smelting  works  in  Lead- 
ville  ten  thousand  tons  of  carbonate  lead  ore  from  its  mines  at 
Red  Cliff,  at  the  rate  of  at  least  fifty  tons  a  day,  beginning 
upon  the  completion  of  a  railroad  from  Leadville  to  Red  Cliff, 
and  continuing  until  the  whole  should  have  been  delivered,  and 
that  "  all  ore  so  delivered  shall  at  once  upon  the  delivery  thereof 
>  3  Q.  B.  D.  569. 


884  ^^^^-  '^'-'^L-  SMELT'G  CO.  V.  BELUEN  MIN'G  CO.  [chap.  III. 

become  the  property  of  the  second  party  ;"  and  it  was  further 
agreed  as  follows  : 

"  The  value  of  said  ore  and  the  price  to  be  paid  therefor 
shall  be  fixed  in  lots  of  about  one  hundred  tons  each  ;  that  is 
to  say,  as  soon  as  such  a  lot  of  ore  shall  have  been  delivered  to 
said  second  party,  it  shall  be  sampled  at  the  works  of  said 
second  party,  and  the  sample  assayed  by  either  or  both  of  the 
parties  hereto,  and  the  value  of  such  lots  of  ore  shall  be  fixed 
by  such  assay  ;  in  case  the  parties  hereto  cannot  agree  as  to 
such  assay,  they  shall  agree  upon  some  third  disinterested  and 
competent  party,  whose  assay  shall  be  final.  The  price  to  be 
paid  by  said  second -party  for  such  lot  of  ore  shall  be  fixed  on 
the  basis  hereinafter  agreed  upon  by  the  closing  New  York 
quotations  for  silver  and  common  lead,  on  the  day  of  the 
delivery  of  sample  bottle,  and  so  on  until  all  of  said  ore  shall 
have  been  delivered. 

"  Said  second  party  shall  pay  said  first  party  at  said  Lead- 
ville  foi  each  such  lot  of  ore  at  once,  upon  the  determination  of 
its  assay  value,  at  the  following  prices,"  specifying,  by  refer- 
ence to  the  New  York  quotations,  the  price  to  be  paid  per 
pound  for  the  lead  contained  in  the  ore,  and  the  price  to  be 
paid  for  the  silver  contained  in  each  ton  of  ore,  varying  accord- 
ing to  the  proportions  of  silica  and  of  iron  in  the  ore. 

The  complaint  further  alleged  that  the  railroad  was  com- 
pleted on  November  30th,  1881,  and  thereupon  the  defendant, 
under  and  in  compliance  with  the  contract,  began  to  deliver 
ore  to  Billing  &  Eilers  at  their  smelting  works,  and  delivered 
167  tons  between  that  date  and  January  ist,  1882,  when  "  the 
said  firm  of  Billing  &  Eilers  was  dissolved,  and  the  said  con- 
tract and  the  business  of  said  firm,  and  the  smelting  works  at 
which  said  ores  were  to  be  delivered,  were  sold,  assigned,  and 
transferred  to  G.  Billing,  whereof  the  defendant  had  due 
notice  ;"  that  after  such  transfer  and  assignment  the  defendant 
continued  to  deliver  ore  under  the  contract,  and  between  Janu- 
ary ist  and  April  21st,  1882,  delivered  to  Billing  at  said  smelting 
works  894  tons  ;  that  on  May  ist,  1882,  the  contract,  together 
with  the  smelting  works,  was  sold  and  conveyed  by  Billing  to 
the  plaintiff,  whereof  the  defendant  had  due  notice  ;  that  the 
defendant  then  ceased  to  deliver  ore  under  the  contract,  and 
afterward  refused  to  perform  the  contract,  and  gave  notice  to 
the  plaintiff  that  it  considered  the  contract  cancelled  and 
annulled  ;  that  all  the  ore  so  delivered  under  the  contract  was 
paid  for  according  to  its  terms  ;  that  "  the  plaintiff  and  its  said 
assignors  were  at  all  times  during  their  respective  ownerships 
ready,  able,  and  willing  to  pay  on  the  like  terms  for  each  lot  as 


SEC.  II.]     ARK.  VAL.  SMELT'G  CO.  V.  BELDEN  MIN'G  CO.  885 

delivered,  when  and  as  the  defendant  should  deliver  the  same, 
according  to  the  terms  of  said  contract,  and  the  time  of  pay- 
ment was  fixed  on  the  day  of  delivery  of  the  '  sample  bottle,' 
by  which  expression  was,  by  the  custom  of  the  trade,  intended 
the  completion  of  the  assay  or  test  by  which,  the  value  of  the 
ore  was  definitely  fixed  ;"  and  that  "  the  said  Billing  &  Eilers, 
and  the  said  G.  Billing,  their  successor  and  assignee,  at  all  times 
since  the  delivery  of  said  contract,  and  during  the  respective 
periods  when  it  was  held  by  them  respectively,  were  able, 
ready,  and  willing  to  and  did  comply  with  and  perform  all  the 
terms  of  the  same,  so  far  as  they  were  by  said  contract  required  ; 
and  the  said  plaintiff  has  been  at  all  times  able,  ready,  and  will- 
ing to  perform  and  comply  with  the  terms  thereof,  and  has 
from  time  to  time,  since  the  said  contract  was  assigned  to  it,  so 
notified  the  defendant." 

The  defendant  demurred  to  the  complaint  for  various  reasons, 
one  of  which  was  that  the  contract  therein  set  forth  could  not 
be  assigned,  but  was  personal  in  its  nature,  and  could  not,  by 
the  pretended  assignment  thereof  to  the  plaintiff,  vest  the 
plaintiff  with  any  power  to  sue  the  defendant  for  the  alleged 
breach  of  contract. 

The  Circuit  Court  sustained  the  demurrer,  and  gave  judg- 
ment for  the  defendant  ;  and  the  plaintiff  sued  out  this  writ  of 
error. 

R.  S.  Aforrison,  T.  M.  Patterson  and  C.  S.  Thotnas,  for  plain- 
tiff in  error. 

No  appearance  for  defendant  in  error. 

Gray,  J.,  after  stating  the  case  as  above  reported,  delivered 
the  opinion  of  the  Court. 

If  the  assignment  to  the  plaintiff  of  the  contract  sued  on  was 
valid,  the  plaintiff  is  the  real  party  in  interest,  and  as  such 
entitled,  under  the  practice  in  Colorado,  to  maintain  this  action 
in  its  own  name.  Rev,  Stat.,  §  914  ;  Colorado  Code  of  Civil 
Procedure,  §  3  ;  Albany  &  Rensselaer  Co.  v.  Lundberg,  121 
U.  S.  451.  The  vital  question  in  the  case,  therefore,  is  v/hether 
the  contract  between  the  defendant  and  Billing  &  Eilers  was 
assignable  by  the  latter,  under  the  circumstances  stated  in  the 
complaint. 

At  the  present  day,  no  doubt,  an  agreement  to  pay  money, 
or  to  deliver  goods,  may  be  assigned  by  the  person  to  whom 
the  money  is  to  be  paid  or  the  goods  are  to  be  delivered,  if 
there  is  nothing  in  the  terms  of  the  contract,  whether  by  requir- 
ing something  to  be  afterward  done  by  him,  or  by  some  other 
stipulation,  which  manifests  the  intention  of  the  parties  that  it 
shall  not  be  assignable. 


886  ARK.  VAL.  SMELT'G  CO.  V.  BELDEN  MIN'G  CO.  [CHAP.  III. 

But  every  one  has  a  right  to  select  and  determine  with  whom 
he  will  contract,  and  cannot  have  another  person  thrust  upon 
him  without  his  consent.  In  the  familiar  phrase  of  Lord  Den- 
man,  "  You  have  the  right  to  the  benefit  you  anticipate  from 
the  character,  credit,  and  substance  of  the  party  with  whom 
you  contract."  Humble  v.  Hunter,  12  Q.  B.  310,  317  ;  Win- 
chester v.  Howard,  97  Mass.  303,  305  ;  Boston  Ice  Co.  v. 
Potter,  123  Mass.  28;  King  v.  Batterson,  13  R.  I.  117,  120; 
Lansden  v.  McCarthy,  45  Missouri,  106.  The  rule  upon  this 
subject,  as  applicable  to  the  case  at  bar,  is  well  expressed  in  a 
recent  English  treatise.  "  Rights  arising  out  of  contract  can- 
not be  transferred  if  they  are  coupled  with  liabilities,  or  if  they 
involve  a  relation  of  personal  confidence  such  that  the  party 
whose  agreement  conferred  those  rights  must  have  intended 
them  to  be  exercised  only  by  him  in  whom  he  actually  con- 
fided."    Pollock  on  Contracts  (4th  ed.)  425. 

The  contract  here  sued  on  was  one  by  which  the  defendant 
agreed  to  deliver  ten  thousand  tons  of  lead  ore  from  its  mines 
to  Billing  &  Eilers  at  their  smelting  works.  The  ore  was  to  be 
delivered  at  the  rate  of  fifty  tons  a  day,  and  it  was  expressly 
agreed  that  it  should  become  the  property  of  Billing  &  Eilers 
as  soon  as  delivered.  The  price  was  not  fixed  by  the  contract, 
or  payable  upon  the  delivery  of  the  ore.  But,  as  often  as  a 
hundred  tons  of  ore  had  been  delivered,  the  ore  was  to  be 
assayed  by  the  parties  or  one  of  them,  and,  if  they  could  not 
agree,  by  an  umpire  ;  and  it  was  only  after  all  this  had  been 
done,  and  according  to  the  result  of  the  assay,  and  the  propor- 
tions of  lead,  silver,  silica,  and  iron,  thereby  proved  to  be  in 
the  ore,  that  the  price  v^'^as  to  be  ascertained  and  paid.  During 
the  time  that  must  elapse  between  the  delivery  of  the  ore  and 
the  ascertainment  and  payment  of  the  price,  the  defendant  had 
no  security  for  its  payment,  except  in  the  character  and  sol- 
vency of  Billing  &  Eilers.  The  defendant,  therefore,  could  not 
be  compelled  to  accept  the  liability  of  any  other  person  or  cor- 
poration as  a  substitute  for  the  liability  of  those  with  whom  it 
had  contracted. 

The  fact  that  upon  the  dissolution  of  the  firm  of  Billing  & 
Eilers,  and  the  transfer  by  Eilers  to  Billing  of  this  contract, 
together  with  the  smelting  works  and  business  of  the  partner- 
ship, the  defendant  continued  to  deliver  ore  to  Billing  accord- 
ing to  the  contract,  did  not  oblige  the  defendant  to  deliver  ore 
to  a  stranger,  to  whom  Billing  had  undertaken,  without  the 
defendant's  consent,  to  assign  the  contract.  The  change  in  a 
partnership  by  the  coming  in  or  the  withdrawal  of  a  partner 
might  perhaps  be  held  to  be  within  the  contemplation  of  the 


SEC.    II.]     ARK.  VAL.  SMELT'G  CO.  V.  BELDEN  MIN'G  CO.  887 

parties  originally  contracting  ;  but,  however  that  may  be,  an 
assent  to  such  a  change  in  the  one  party  cannot  estop  the  other 
to  deny  the  validity  of  a  subsequent  assignment  of  the  whole 
contract  to  a  stranger.  The  technical  rule  of  law,  recognized 
in  Murray  z'.  Harv^ay,  56  N.  Y.  337,  cited  for  the  plaintiff,  by 
which  a  lessee's  express  covenant  not  to  assign  has  been  held 
to  be  wholly  determined  by  one  assignment  with  the  lessor's 
consent,  has  no  application  to  this  case. 

The  cause  of  action  set  forth  in  the  complaint  is  not  for  any 
failure  to  deliver  ore  to  Billing  before  his  assignment  to  the 
plaintiff  (which  might  perhaps  be  an  assignable  chose  in  action), 
but  it  is  for  a  refusal  to  deliver  ore  to  the  plaintiff  since  -this 
assignment.  Performance  and  readiness  to  perform  by  the 
plaintiff  and  its  assignors,  during  the  periods  for  which  they 
respectively  held  the  contract,  is  all  that  is  alleged  ;  there  is  no 
allegation  that  Billing  is  ready  to  pay  for  any  ore  delivered  to 
the  plaintiff.  In  short,  the  plaintiff  undertakes  to  step  into 
the  shoes  of  Billing,  and  to  substitute  its  liability  for  his.  The 
defendant  had  a  perfect  right  to  decline  to  assent  to  this,  and 
to  refuse  to  recognize  a  party,  with  whom  it  had  never  con- 
tracted, as  entitled  to  demand  further  deliveries  of  ore. 

The  cases  cited  in  the  careful  brief  of  the  plaintiff's  counsel, 
as  tending  to  support  this  action,  are  distinguishable  from  the 
case  at  bar,  and  the  principal  ones  may  be  classified  as  follow^s  : 

First.  Cases  of  agreements  to  sell  and  deliver  goods  for  a 
fixed  price,  payable  in  cash  on  delivery,  in  which  the  owner 
would  receive  the  price  at  the  time  of  parting  with  his  property, 
nothing  further  would  remain  to  be  done  by  the  purchaser,  and 
the  rights  of  the  seller  could  not  be  affected  by  the  question 
whether  the  price  was  paid  by  the  person  with  whom  he  origi- 
nally contracted  or  by  an  assignee.  Sears  v.  Conover,  3  Keyes, 
113,  and  4  Abbott  (N.  Y.  App.)  179  ;  Tyler  v.  Barrows,  6  Rob- 
ertson (N.  Y.)  104. 

Second.  Cases  upon  the  question  how  far  executors  succeed 
to  rights  and  liabilities  under  a  contract  of  their  testator. 
Hambly  v.  Trott,  Cowper,  371,  375  ;  Wentworth  v.  Cock,  10 
Ad.  &  El.  42,  and  2  Per.  &  Dav.  251  ;  Williams  on  Executors 
(7th  ed.),  1723-25.  Assignment  by  operation  of  law,  as  in 
the  case  of  an  executor,  is  quite  different  from  assignment  by 
act  of  the  party  ;  and  the  one  might  be  held  to  have  been  in  the 
contemplation  of  the  parties  to  this  contract  although  the  other 
was  not.  A  lease,  for  instance,  even  if  containing  an  express 
covenant  against  assignment  by  the  lessee,  passes  to  his  ex- 
ecutor. And  it  is  by  no  means  clear  that  an  executor  would  be 
bound  to  perform,  or  would  be  entitled  to  the  benefit  of,  such 


888  O'KEEFE   v.   ALLEN.  [CHAP.  III. 

a  contract  as  that  now  in  question.  Dickinson  v.  Calahan,  19 
Penn.  St.  227. 

Tiiird.  Cases  of  assignments  by  contractors  for  public  works, 
in  which  the  contracts,  and  the  statutes  under  which  they  were 
made,  were  held  to  permit  all  persons  to  bid  for  the  contracts, 
and  to  execute  them  through  third  persons.  Taylor  v.  Palmer, 
31  California,  240,  247  ;  St.  Louis  v.  Clemens,  42  Missouri,  69  ; 
Philadelphia  v.  Lockhardt,  73  Penn.  St.  211  ;  Devlin  v.  New 
York,  (>i  N.  Y.  8. 

Fourth.  Other  cases  of  contracts  assigned  by  the  party  who 
was  to  do  certain  work,  not  by  the  party  who  was  to  pay  for  it, 
and  in  which  the  question  was  whether  the  work  was  of  such  a 
nature  that  it  was  intended  to  be  performed  by  the  original 
contractor  only.  Robson  v.  Drummond,  2  B.  &  Ad.  303  ;  Brit- 
ish Wagon  Co.  v.  Lea,  5  Q.  B.  D.  149  ;  Parsons  v.  Woodward, 
2  Zabriskie,  196. 

Without  considering  whether  all  the  cases  cited  were  well 
decided,  it  is  sufficient  to  say  that  none  of  them  can  control  the 
decision  of  the  present  case. 

Judgment  affirmed. 


O'KEEFE  V.  ALLEN. 

In  the  Supreme  Court  of    Rhode  Island,   March    ii,   1898. 
{Reported  in  39  Atlantic  Reporter  752. J 

Exceptions  from  district  court,  Providence  County. 

Action  by  John  A.  O'Keefe  against  William  Allen.  An  order 
denying  a  motion  to  discharge  the  garnishee,  and  plaintiff  ex- 
cepts.    Exceptions  sustained. 

T.  F.  Farrcll^  for  plaintiff. 

J.  M.  Gilbrain,  for  defendant. 

Matteson,  C.J.  This  is  assumpsit  on  book  account.  The 
action  was  brought  in  the  district  court  for  the  Sixth  Judicial 
District.  Attachments  by  trustee  process  were  made  of  the 
defendant's  wages  in  the  possession  of  the  Miller  Iron  Works, 
by  which  he  was  employed.  The  answer  of  the  garnishee  dis- 
closed that  on  June  24th,  1895,  the  defendant,  by  his  deed  of  that 
date,  assigned  to  James  Cunningham  all  moneys  which  should 
become  due  to  him  from  the  garnishee  for  services  as  a  moulder 
between  that  date  and  June  24th,  1896  ;  that  at  the  date  of  the 
assignment  he  was  in  the  employment  of  the  garnishee,  and  had 
been  so  employed  for  a  number  of  years,  but  that  he  left  the 
garnishee's  employment    in  October,    1895,   and   entered  their 


SEC.  II.]  •    O'KEEFE   V.    ALLEN.  889 

employment  again  in  the  month  of  December  following.  On 
these  facts  the  plaintiff  moved  tliat  the  garnishee  be  discharged. 
The  court  denied  the  motion,  and  the  plaintiff  excepted.  We 
think  that  the  district  court  erred  in  its  rulings.  It  is  well 
established  that  wages  to  be  earned  under  a  subsisting  contract 
may  be  assignetl,  and  that  an  assignment  in  good  faith  is  valid 
against  a  subsequent  garnishment.  Tiernay  v.  McGarity,  14 
R.  I.  231.  The  moment,  however,  that  the  defendant  left  the 
employment  of  the  Miller  Iron  Company,  in  October,  1895. 
the  contract  of  employment,  on  which  the  assignment  of  wages 
of  June  24th,  1895,  rested,  was  at  an  end.  His  subsequent  return 
to  the  employment  was  not  by  virtue  of  the  old,  but  under  a 
new,  hiring.  As  to  this  new  contract,  the  assignment  at  law, 
however  it  might  be  in  equity,  was  the  assignment  of  a  mere 
possibility,  and,  therefore,  at  law,  inoperative.  Tiernay  v. 
McGarity,  14  R.  I.  232  ;  Edwards  v.  Peterson,  80  Me.  367,  14 
Atl.  936.  The  case  which  comes  nearest  to  sustaining  an 
opposite  doctrine  of  any  which  we  have  found  is  Wallace  v. 
Chair  Co.,  16  Graj^  209.  In  this  case  it  was  held  that  a  written 
order  for  the  payment  of  a  certain  sum  out  of  his  wages,  drawn 
for  a  sufficient  consideration,  by  a  workman  employed  under  a 
subsisting  engagement  for  a  certain  time,  upon  his  employer, 
and  accepted  by  the  latter,  and  made  "  payable  when  earned," 
applied  to  wages  earned  under  a  new  engagement,  entered  into 
by  the  workman  immediately  on  the  expiration  of  the  first,  for 
lower  wages,  with  the  same  employer.  The  court  admitted 
the  rule  stated  above,  but  seemed  to  think  that  the  fact  that  the 
new  arrangement  immediately  followed  the  old,  so  that  the  ser- 
vice was  continuous,  was  sufficient  to  prevent  the  operation  of 
the  rule.  It  evidently  regarded  the  new  arrangement  rather  as 
a  modification  of  the  old,  and  the  old  as  still  subsisting,  than 
as  a  new  and  independent  employment.  The  case  at  bar  is  in 
this  respect  totally  unlike  Wallace  v.  Chair  Co.,  for  here  there 
was  no  continuity  of  service,  and  the  return  to  the  employment 
was,  so  far  as  appears,  under  a  new  and  distinct  hiring. 

The  answer  of  the  garnishee  also  disclosed  that  before  the 
service  of  the  writ  of  mesne  process,  the  defendant,  on  June  24th, 
1896,  had  executed  a  second  assignment  of  his  wages  to  Cun- 
ningham, which  was  operative,  under  the  new  hiring  in  the 
preceding  December,  as  against  the  service  by  trustee  process 
on  that  writ  on  July  3d,  1896. 

Exception  sustained,  and  case  remitted  to  the  district  court 
for  the  Sixth  Judicial  District,  with  direction  to  charge  the  gar- 
nishee to  the  extent  of  the  moneys  in  its  possession  at  the  time 
of  the  attachment  on  the  original  writ,  to  wit,  June  20th,  1895. 


890  PALMER   AND    DANA   V.    MERRILL.  [CHAP.  III. 

SAMUEL    PALMER  v.  STEPHEN    MERRILL. 

JAMES    DANA  v.  SAME. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  October 

Term,  1850. 

[Reported  in  6  Ctishing  2S2.J 

These  were  actions  of  assumpsit  against  the  defendant  as  the 
administrator  of  Asa  Spaulding,  late  of-  Charlestown,  deceased, 
and  were  tried  before  Metcalf,  J.,  in  this  Court. 

The  writ  in  the  first-named  case,  which  was  dated  March  26th, 
1849,  contained  the  common  counts,  accompanied  by  a  specifi- 
cation of  claim,  set  forth  at  length  in  a  special  declaration, 
which  was  afterward  filed  in  the  cause.  In  the  special  declara- 
tion the  plaintiff  alleged  that,  on  May  26th,  1847,  the  Massa- 
chusetts Hospital  Life  Insurance  Company  caused  the  life  of  the 
defendant's  intestate  to  be  insured,  for  the  term  of  seven  years 
from  that  day,  in  the  sum  of  $1000,  payable  to  the  assured,  his 
executors,  administrators,  or  assigns  ;  that  the  assured,  on 
May  26th,  1848,  by  a  memorandum  in  writing  endorsed  on 
the  policy  for  a  valuable  consideration,  assigned  and  requested 
the  insurers  to  pay  the  plaintiff  the  sum  of  $400,  part  of  the 
sum  insured  by  the  policy,  in  case  of  loss  on  the  same,  of  which 
assignment  and  request  the  insurers  on  the  same  day  had  due 
notice  ;  that  on  August  5th,  1848,  the  assured  died  at  Charles- 
town,  and  on  the  9th  due  notice  and  proof  thereof  were  given 
to  the  insurers  ;  that  the  defendant  was  duly  appointed  admin- 
istrator of  the  estate  of  the  assured,  and  was  notified  of  the 
assignment  and  request  ;  that  on  November  8th,  1848,  the  in- 
surers paid  the  defendant  the  sum  of  $1000,  the  amount  insured 
on  Spaulding's  life;  and  that  on  the  same  day  the  plaintiff 
demanded  of  the  defendant  the  sum  of  $400  above  mentioned, 
by  means  of  which  the  defendant  became  liable,  and  in  consid- 
eration thereof  promised  the  plaintiff  to  pay  him  the  last-men- 
tioned sum  on  demand,  but  though  often  requested  refused  so 
to  do. 

At  the  trial  the  plaintiff  gave  evidence  of  the  facts  alleged  in 
his  declaration,  and  also  that  at  the  time  of  the  endorsement  on 
the  policy  of  the  assignment  or  request  above  mentioned  the 
defendant's  intestate  was  indebted  to  the  plaintiff  and  one 
Harding,  as  partners,  for  the  amount  due  on  three  promissory 
notes,  being  about  the  sum  of  $300  ;  that  on  said  May  26th,  1848, 


SEC.  II.]  PALMER   AND    DANA   7'.    MERRILL.  89I 

when  the  annual  premium  was  paid,  the  assured  exhibited  the 
policy  to  the  insurers  with  the  assignment  or  request  above 
mentioned  endorsed  thereon  ;  that  the  plaintiff,  soon  after  the 
death  of  the  assured,  demanded  of  the  insurers  to  pay  him  the 
said  sum  of  $400,  which  they  declined  doing,  on  the  ground 
that  the  assignment  thereof  was  not  in  the  form  usually  required 
by  them,  and  that  they  did  not  consider  themselves  bound  to 
pay  the  amount  insured  by  the  policy  by  instalments  ;  and 
that  the  policy  with  the  assignment  thereof  endorsed,  together 
with  other  effects  of  the  assured,  came  into  the  hands  of  the 
defendant  as  administrator  immediately  after  his  appointment 
as  such. 

The  defendant  pleaded  in  abatement  that  the  estate  of  his 
intestate  had  been  represented  insolvent  before  the  date  of  the 
plaintiff's  writ,  to  which  plea  the  plaintiff  demurred  and  the 
defendant  was  ordered  to  answer  over.  The  defendant  then 
pleaded  farther  in  abatement,  that  the  action  was  commenced 
before  the  expiration  of  one  year  from  the  time  of  his  taking 
out  administration,  which  plea  the  defendant  afterward  waived 
by  agreement  with  the  plaintiff. 

At  the  trial  the  defendant  pleaded  the  general  issue,  and 
specified  in  his  defence  :  First,  that  whatever  money  was  paid 
to  him  by  the  insurers  was  paid  to  him  as  administrator,  and 
that  the  same  was  lawfully  retained  by  him  as  such,  and  be- 
longed to  the  general  assets  of  the  estate  of  his  intestate,  which 
had  been  duly  rendered  insolvent  ;  and,  second,  that  the  de- 
fendant was  not  liable  for  interest. 

It  was  admitted  by  the  plaintiff  that  the  estate  of  the  assured 
had  been  duly  rendered  insolvent. 

The  jury,  under  the  instructions  of  the  presiding  judge, 
returned  a  verdict  for  the  plaintiff  for  the  amount  due  on  the 
notes  in  evidence  with  interest. 

In  the  second  entitled  cause  the  writ  bore  date  the  same  day, 
contained  a  similar  declaration,  the  same  facts  were  admitted 
and  proved  under  it,  and  the  same  proceedings  took  place  as  in 
the  preceding  case. 

The  verdicts  in  both  cases  were  taken  subject  to  the  opinion 
of  the  whole  Court  on  the  question,  whether  the  several  plain- 
tiffs were  entitled  to  judgment  in  the  usual  form,  and  to  execu- 
tion thereon,  and  to  full  satisfaction  thereof  if  the  assets  of  the 
defendant's  mtestate  were  sufficient  to  satisfy  the  same  ;  or 
whether  the  judgments,  when  rendered,  Were  to  be  presented 
to  the  commissioners  in  insolvency  appointed  to  examine  the 
claims  against  the  estate,  and  to  be  allowed  and  paid  like  the 
claims  of  other  creditors  ;  and  also  upon  the  further  question, 


892  PALMER   AND   DANA   V.    MERRILL.  [CHAP.  III. 

whether  the  demand  was  in  its  nature  assignable,  and  whether 
the  plaintiffs'  remedy  was  by  the  present  form  of  action  or  by 
a  bill  in  equity. 

C.  G  Loring  for  the  plaintiffs. 

1.  These  demands  were  assignable.  The  plaintiffs  do  not 
contend  that  the  policy  could  be  assigned  in  portions,  but  that 
an  equitable  interest  in  a  portion  might  be  assigned.  These 
assignments  of  parts  constituted  a  trust  ;  the  administrator 
alone  must  collect  the  whole,  but  when  collected  he  holds  the 
portions  which  have  been  assigned  in  trust  for  the  assignees. 
2  Story,  Eq.  J.,  §§  1040/^,  1044;  Lewin  on  Trusts,  15,  7677  ; 
Safford  z^.  Rantoul,  12  Pick.  233  ;  Wakefield  v.  Martin,  3  Mass. 
558  ;  Cutts  V.  Perkins,  12  Mass.  206  ;  Parkhurst  v.  Dickerson, 
21  Pick.  307  ;  Adams  v.  Robinson,  i  Pick.  461.  The  delivery 
was  as  perfect  as  the  case  admitted. 

2.  The  plaintiffs  can  maintain  assumpsit,  and  are  not  obliged  to 
resort  to  a  bill  in  equity.  Arms  v.  Ashley,  4  Pick.  71  ;  New- 
hall  V.  Wheeler,  7  Mass.  189,  198  ;  Hall  v.  Marston,  17  Mass. 
575  ;  Clafiin  v.  Godfrey,  21  Pick,  i,  6  ;  Swasey  v.  Little,  7  Pick. 
296  ;  Sheldon  v.  Purple,  15  Pick.  528  ;  Andrews  v.  Sparhawk, 
13  Pick.  393. 

3.  The  plaintiffs  may  recover  judgment  and  execution  in  these 
actions  for  the  full  amount  of  their  claims,  and  are  not  obliged 
to  present  their  claims  to  the  commissioners  in  insolvency.  See 
Rev.  Sts.  ch.  69,  §§6,  8  ;  Lewin  on  Trusts,  205  ;  Johnson  v. 
Ames,  II  Pick.  173  ;  Safford  v.  Rantoul,  12  Pick.  233  ;  Treco- 
thick  V.  Austin,  4  Mason,  16,  29-30. 

G.   W.   Warren  for  the  defendant. 

Shaw,  C.J.  This  is  a  suit  against  the  defendant  as  adminis- 
trator of  the  estate  of  Asa  Spaulding,  in  which  the  plaintiff 
seeks  to  recover  the  whole  amount  due  to  him  on  certain  notes 
due  from  said  Asa  Spaulding.  It  is  conceded  that  the  estate  of 
Spaulding  has  been  represented  insolvent,  and  it  is  therefore 
quite  clear  that  the  plaintiff  cannot  recover  his  full  debt,  to  the 
injury  of  other  creditors,  unless  there  are  circumstances  which 
distinguish  this  case  from  the  ordinary  case  of  a  claim  on  an 
insolvent  estate.  The  plaintiff  undertakes  thus  to  distinguish 
it,  by  showing  that  he  had  a  lien  on  a  specific  portion  of  the 
assets,  which  came  into  the  hands  of  the  defendant  charged 
with  such  lien  ;  and  that  the  defendant,  having  received  the 
amount  of  it,  is  liable  to  the  plaintiff  as  for  money  received  to 
his  use. 

The  ground  is  that  Asa  Spaulding  obtained  a  policy  of  insur- 
ance on  his  own  life  for  $jooo  ;  that  during  his  life,  and  while 
the  policy  was  in  force,  he  endorsed  an  order  thereon,  addressed 


SEC.  II.]  PALMER   AND    DANA   V.    MERRILL.  893 

to  the  insurers  requesting  them,  in  case  of  loss,  to  pay  $400  of 
the  amount  thereby  insured  to  Palmer,  the  plaintiff,  which 
order  was  duly  signed  by  Spaulding  and  notified  to  the  insurers, 
but  the  policy  with  this  endorsement  thereon  remained  in  the 
custody  of  Spaulding  until  his  decease,  and  came  into  the  hands 
of  the  administrator  with  the  other  effects  of  the  deceased.  A 
like  order  in  all  respects,  and  for  the  like  sum,  was  also  endorsed 
on  the  policy  in  favor  of  James  Dana.  The  claim  of  the  plain- 
tiff is,  that  this  was  an  assignment /r<7  tanto  of  the  policy,  as  col- 
lateral security  for  several  notes,  described  in  the  report.  After 
the  decease  of  Spaulding,  and  notice  to  the  insurers,  the  plain- 
tiff demanded  of  them  the  $400,  part  of  the  loss  which  the 
insurers  declined  paying,  on  the  ground  that  the  assignment 
was  not  in  the  form  usually  required  by  them,  and,  besides, 
that  they  did  not  think  themselves  obligated  to  pay  the  amount 
of  the  policy  in  instalments.  Subsequently  on  the  demand  of 
the  defendant,  as  administrator,  the  insurers  paid  the  full 
amount  to  him. 

The  question  is  whether  the  case  shows  an  assignment  which 
vested  any  interest  in  this  policy,  legal  or  equitable,  in  the 
plaintiff.  The  policy  was  an  executory  contract,  a  chose  in 
action,  available  as  a  legal  contract  only  to  Asa  Spaulding  and 
his  personal  representatives. 

According  to  the  modern  decisions,  courts  of  law  recognize 
the  assignment  of  a  chose  in  action,  so  far  as  to  vest  an  equita- 
ble interest  in  the  assignee,  and  authorize  him  to  bring  an  action 
in  the  name  of  the  assignor  and  recover  a  judgment  for  his  own 
benefit.  But  in  order  to  constitute  such  an  assignment,  two 
things  must  concur  :  First,  the  party  holding  the  chose  in 
action  must,  by  some  significant  act,  express  his  intention  that 
the  assignee  shall  have  the  debt  or  right  in  question,  and, 
according  to  the  nature  and  circumstances  of  the  case,  deliver 
to  the  assignee,  or  to  some  person  for  his  use,  the  security  if 
there  be  one,  bond,  deed,  note,  or  written  agreement,  upon 
which  the  debt  or  chose  in  action  arises  ;  and,  secondly,  the 
transfer  shall  be  of  the  whole  and  entire  debt  or  obligation,  in 
which  the  chose  in  action  consists,  and,  as  far  as  practicable, 
place  the  assignee  in  the  condition  of  the  assignor,  so  as  to 
enable  the  assignee  to  recover  the  full  debt  due,  and  to  give  a 
good  and  valid  discharge  to  the  party  liable. 

The  transfer  of  a  chose  in  action  bears  an  analogy  in  some 
respect  to  the  transfer  of  personal  property  ;  there  can  be  no 
actual  manual  tradition  of  a  chose  in  action,  as  there  must  be 
of  personal  property  to  constitute  a  lien,  but  there  must  be  that 
which  is  similar,  a  delivery  of   the  note,    certificate,   or  other 


894  PALMER   AND   DANA   V.    MERRILL.  [CHAP.  III. 

document,  if  there  is  any,  which  constitutes  the  chose  in  action, 
to  the  assignee,  with  full  power  to  exercise  every  species  of 
dominion  over  it,  and  a  renunciation  of  any  power  over  it  on 
the  part  of  the  assignor.  The  intention  is,  as  far  as  the  nature 
of  the  case  will  admit,  to  substitute  the  assignee  in  place  of  the 
assignor  as  owner. 

It  appears  to  us  that  the  order  endorsed  on  this  policy,  and 
\  retained  by  the  assured,  fails  of  amounting  to  an  assignment 
in  both  of  these  particulars.  We  do  not  question  that  an  assign- 
ment may  be  made  of  an  entire  fund  in  the  form  of  an  order 
drawn  by  the  owner  on  the  holder  of  the  fund  or  party  indebted, 
with  authority  to  receive  the  property  or  discharge  the  debt. 
But  if  it  be  for  a  part  only  of  the  fund  or  debt,  it  is  a  draft  or 
bill  of  exchange  which  does  not  bind  the  drawee  or  transfer 
any  proprietary  or  equitable  interest  in  the  fund  until  accepted 
by  the  drawee.  It  therefore  creates  no  lien  upon  the  fund. 
Upon  this  point  the  authorities  seem  decisive.  Welch  v.  Mande- 
ville,  I  Wheat.  233  ;  S.  C.  5  Wheat.  277  ;  Robbins  v.  Bacon, 
3  Greenl.  346  ;  Gibson  v.  Cooke,  20  Pick.  15. 

It  seems  to  us  quite  clear  that  the  plaintiff  acquired  no  such 
interest  in  this  policy  as  would  enable  him  to  maintain  an  action 
against  the  insurers.  He  seems  himself  to  have  thought  so 
too,  for  although  he  demanded  the  amount  of  them,  which  they 
refused  to  pay,  for  reasons  which  seem  to  be  conclusive,  he  yet 
declined  bringing  any  suit  against  them,  but  permitted  them 
to  pay  the  money  over  to  the  administrator.  If  the  plaintiff 
had  no  such  legal  or  equitable  interest  in  the  debt  due  on  the 
policy  as  would  enable  him  to  maintain  an  action  or  suit  in 
equity,  either  in  his  own  name  or  in  the  name  of  the  adminis- 
trator of  the  assignor,  for  his  own  benefit,  it  seems  difficult  to 
perceive  on  what  ground  he  had  any  equitable  lien  on  the  debt 
due  by  the  policy,  and  if  he  had  not,  then  the  administrator 
took  it  as  general  assets  charged  with  no  trust  for  the  plaintiff. 

It  appears  to  us  that  a  contrary  doctrine  would  tend  to  a 
great  confusion  of  rights.  A  man  cannot  by  his  own  act  charge 
a  personal  chattel,  a  carriage  and  horses,  for  instance,  with  a 
lien  in  favor  of  a  particular  creditor,  and  yet  retain  the  domin- 
ion and  possession  of  them  till  his  death  ;  a  fortiori  ^htro.  he 
retains  the  memorandum  or  instrument  of  transfer  of  such 
chattel  in  his  own  possession  and  under  his  own  control.  It 
seems  to  us  equally  impracticable  to  charge  a  debt  due  to  him, 
by  an  order  or  memorandum  retained  in  his  own  possession, 
purporting  to  give  a  particular  creditor  an  equitable  lien  by 
the  assignment  of  such  chose  in  action,  without  a  transfer  or 
delivery  of  the  security  by  which   it  is  manifested.     Such   an 


SEC.  II.]  BRILL   et  al.   V.   TUTTLE.  895 

assignment  would  not  constitute  the  debtor  himself  a  trustee  to 
the  creditors.  What  trust  then  devolves  on  the  administrator  ? 
Were  the  law  otherwise,  an  administrator,  instead  of  succeed- 
ing to  the  property  and  rights  of  his  intestate,  to  be  adminis- 
tered and  distributed  equally  among  all  the  creditors,  might  be 
obliged  to  dispose  of  it  in  very  unequal  proportions  according 
to  such  supposed  declaration  of  trust.  These  considerations 
apply  with  peculiar  force  to  a  policy  of  insurance  on  the  life  of 
the  assured  himself  on  which  no  money  can  become  due  until 
the  death  of  the  assured,  at  which  time  all  his  rights  devolve  on 
his  personal  representative.  If,  therefore,  it  is  intended  to 
supersede  the  right  of  the  personal  representative,  it  must  be 
done  in  the  mode  required  for  a  complete  assignment  of  the 
whole  contract. 

The  defendant  having  waived  his  objection  that  this  action 
was  brought  too  soon  for  the  purpose  of  trying  the  plaintiff's 
right,  we  see  no  objection  to  entering  a  judgment  for  the 
amount  of  the  debt  actually  due  from  the  intestate,  to  be  certi- 
fied to  the  judge  of  probate,  to  be  added  to  the  commissioners* 
report  of  debts  allowed,  so  as  to  enable  the  plaintiff  to  take  a 
dividend/rf  rata  with  other  creditors,  but  not  to  have  execu- 
tion de  bonis  testatorts. 

Note. — It  having  been  suggested  in  the  argument  that  other 
facts  existed  not  appearing  in  the  report,  showing  that  the 
assignments  had  been  delivered  to  the  respective  assignees  at 
the  time,  notice  thereof  given  to  the  company,  and  assented  to 
by  them,  expressly  or  by  implication,  a  new  trial  was  granted, 
on  which  the  plaintiffs  obtained  verdicts  and  judgments. 


ADDISON  BRILL  ET  al..  Appellants,  v.  JEROME 
TUTTLE,  Respondent. 

In  the  Court  of  Appeals  of  New  York,  September  21, 

1880. 

[Reported  in  Si  New  York  Reports  454.] 

Appeal  from  order  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department,  reversing  a  judgment 
in  favor  of  plaintiffs  entered  upon  a  verdict.  (Reported  below, 
15  Hun,  289.) 

This  action  was  brought  upon  a  written  instrument,  a  copy 
of  which  is  set  forth  in  the  opinion,  wherein  also  the  material 
facts  are  stated. 


S,g6  BRILL   it   al.    V.    TUTTLE.  [CHAP.  III. 

Thomas  Jiichardson  for  appellants. 

Amos  H.  Frescott  for  respondent. 

Rapallo,  J.  The  difficulty  in  this  case  consists  rather  in 
ascertaining  the  true  construction  to  be  put  upon  the  order 
than  the  legal  principles  applicable  to  the  case.  There  can  be 
no  doubt  as  to  the  rule  that  when,  for  a  valuable  consideration 
from  the  payee,  an  order  is  drawn  upon  a  third  party  and  made 
payable  out  of  a  particular  fund,  then  due  or  to  become  due 
fiom  him  to  the  drawer,  the  delivery  of  the  order  to  the  payee 
operates  as  an  assignment  pro  tanto  of  the  fund,  and  the  drawee 
is  bound,  after  notice  of  such  assignment,  to  apply  the  fund,  as 
it  accrues,  to  the  payment  of  the  order  and  to  no  other  purpose, 
and  the  payee  may,  by  action,  compel  such  application.  It  is 
equally  well  established  that  if  a  draft  be  drawn  generally  upon 
the  drawee,  to  be  paid  by  him  in  the  first  instance,  on  the  credit 
of  the  drawer  and  without  regard  to  the  source  from  which  the 
money  used  for  its  payment  is  obtained,  the  designation  by  the 
drawer  of  a  particular  fund,  out  of  which  the  drawee  is  to  sub- 
sequently reimburse  himself  for  such  payment,  or  a  particular 
account  to  which  it  is  to  be  charged,  will  not  convert  the  draft 
into  an  assignment  of  the  fund,  and  the  payee  of  the  draft  can 
have  no  action  thereon  against  the  drawee  unless  he  duly 
accepts.  In  all  cases,  therefore,  in  which  a  particular  fund,  to 
accrue  in  futuro  is  designated  in  the  draft,  and  the  language  is 
ambiguous,  the  turning-point  is  whether  it  was  the  intention  of 
the  parties  that  the  payment  should  be  made  only  out  of  the 
designated  fund,  when  or  as  it  should  accrue,  or  whether  the 
direction  to  the  drawee  to  pay  was  intended  to  be  absolute,  and 
the  fund  was  mentioned  only  as  a  source  of  reimbursement  or 
an  instruction  as  to  book-keeping. 

The  order  in  this  case  was  in  the  following  words  : 

"  Mohawk,  August  31,  1876. 
"  Jerome  Tuttle  : 

"  Pay  Brill  &  Russell  $300,  and  charge  the  same  to  our  ac- 
count for  labor  and  materials  performed  and  furnished  in  the 
repairs  and  alterations  of  the  house  in  which  you  reside  in  the 
village  of  Mohawk.  J.  P.  Ackerman  &  Son." 

If  at  the  time  this  order  was  drawn  the  drawers  had  to  their 
credit  on  the  designated  account  the  sum  of  $300  or  more,  and 
this  fact  was  understood  by  the  parties,  there  would  be  no  diffi- 
culty in  holding  that  the  intention  was  to  transfer  that  credit  or 
balance /r<?  tanto  to  the  plaintiffs,  by  substituting  them  in  the 
place  of  the  drawers  as  the  recipients  thereof.  It  would  be 
fair  to  presume  in  that  case  that  it  was  intended  that  the  pay- 


SEC.  II.]  BRILL   Ct   al.    V.    TUTTLE.  89/ 

ment  should  be  made  out  of  the  balance  of  account  in  tlie  luinds 
of  the  drawee,  and  not  on  the  general  credit  of  the  drawer  and 
that  the  direction  to  charge  the  payment  to  that  account  was 
an  appropriation  of  such  balance  to  the  extent  necessary  to 
meet  the  order.  The  complaint  alleges,  and  when  the  plaintiff 
rested  the  allegation  was  sustained  by  proof,  that  when  the 
order  was  drawn,  August  31st,  and  when  it  was  presented, 
September  ist,  there  was  a  sufficient  amount  due  and  admitted 
to  be  due  from  the  drawee  on  the  account  mentioned  in  the 
order  to  pay  it.  The  motion  for  a  nonsuit  was  therefore  prop- 
erly denied. 

The  evidence  as  to  the  amount  due  on  the  account,  and  as  to 
the  admission  of  the  defendant,  was,  however,  controverted  by 
evidence  on  his  behalf,  and  that  question  was  submitted  to  the 
jury  with  the  instruction  that  the  plaintiffs  were  entitled  to 
recover  any  moneys  owing  by  the  defendant  to  the  drawers  on 
September  ist,  1876,  the  day  of  the  pres.entation  of  the  order  to 
liim,  and  at  any  time  thereafter  before  the  commencement  of 
this  suit,  on  the  account  mentioned  in  the  order,  which  were 
not  otherwise  appropriated  on  September  ist,  and  under  this 
charge  the  jury  found  for  the  plaintiff  the  sum  of  $243. 

This  instruction  brings  up  the  question  whether,  assuming 
that  the  fund  to  meet  the  order  had  not  accrued  and  become 
payable  when  it  was  drawn  and  presented,  the  intention  was 
that  the  payment  should  be  made  out  of  the  fund  when  it 
should  accrue,  and  that  such  payment  should  be  charged,  when 
made,  against  the  sums  thus  becoming  due,  or  whether  it  was 
intended  as  a  direction  to  the  drawee  to  advance  the  amount  of 
the  order  without  regard  to  the  state  of  the  account,  and  charge 
the  amount  thus  advanced  to  the  drawers,  and  subsequently 
reimburse  himself  out  of  the  sums  to  become  due  from  him  to 
the  drawers  on  the  specified  account. 

Considerable  evidence  was  given  of  the  circumstances  sur- 
rounding the  transaction,  and  of  the  negotiations  between  the 
parties  preceding  the  giving  of  the  order,  and  it  may  be  that  a 
mixed  question  of  law  and  fact  was  presented  which  would 
have  justified  the  Court,  if  requested,  in  submitting  the  ques- 
tion of  the  intentions  and  understanding  of  the  parties  to  the 
jury.  But  no  such  request  was  made,  and  both  parties  re- 
quested the  Court  to  construe  the  order,  and,  therefore,  if  any 
question  of  fact  was  involved,  it  was  submitted  to  the  decision 
of  the  Court.  It  was  a  conceded  fact  that  the  drawers  had  a 
contract  with  the  defendant  for  repairing  his  house,  for  which 
they  were  to  receive  $1100,  and  the  defendant  testified  that 
there  was  no  set  time  when  it  was  to  be  paid  ;   that  he  expected 


898  BRILL   Ct  al   V.    TUTTLE.  [cHAP.  in. 

it  was  to  be  paid  when  the  work  was  completed,  but  advanced 
from  time  to  time  on  account  of  labor,  etc.  The  drawers  also 
did  extra  work  to  the  amount  of  $93,  and  the  job  was  nearly 
completed  at  the  time  the  order  was  drawn.  It  was  also  an 
uncontroverted  fact  that  the  drawers  owed  the  plaintiffs  $300, 
and  befofe  drawing  the  order  one  of  the  drawers  and  one  of  the 
plaintiffs  went  together  to  the  defendant,  and  the  defendant 
testified  that  they  then  asked  him  to  accept  an  order  in  favor 
of  plaintiffs  for  $300,  or  give  them  a  note  or  some  security  for 
the  money,  and  that  he  refused.  The  testimony  is  conflicting 
as  to  whether  the  amount  then  due  from  the  defendant  was 
admitted  or  discussed.  Immediately  after  this  conversation 
the  order  in  question  was  drawn  and  delivered  to  the  plaintiff. 
It  was  several  times  presented  to  the  defendant,  but  he  refused 
to  pay  or  recognize  it.  The  amount  due  from  defendant  to  the 
drawers,  at  or  after  the  time  of  the  presentation  of  the  order, 
on  the  designated  account,  was  severely  litigated  on  the  trial, 
and  the  verdict  establishes  that  it  was  $243.  It  can  hardly  be 
conceived  that,  under  these  circumstances,  any  of  the  parties 
could  have  understood  the  order  as  a  request  to  the  defendant 
to  advance  the  $300,  or  any  part  of  it,  unless  it  was,  or  should 
become,  due  from  him  to  the  drawers  on  the  contract  and 
account  for  repairs,  etc.  Its  language  does  not  necessarily 
require  such  a  construction,  and,  if  ambiguous,  should  be  inter- 
preted with  reference  to  the  circumstances  under  which  it  was 
given.  (73  N.  Y.  335.)  These  are  all  inconsistent  with  such  a 
view.  The  defendant  had  already  absolutely  refused  to  accept 
an  order  or  give  any  note  or  security  for  the  money  due  plain- 
tiffs, and  this  was  known  to  all  the  parties,  and  it  would  have 
been  idle  to  draw  a  draft  upon  him  for  any  other  purpose  than 
as  a  direction  to  pay  to  the  plaintiffs  such  sums  as  were  or 
might  become  due  to  the  drawers  on  their  account  for  repairs, 
etc.  The  direction  in  the  order  to  charge  the  money  to  be  paid 
thereon  to  that  account,  indicates,  we  think,  sufficiently  in  con- 
nection with  the  surrounding  circumstances  that  the  payments 
were  to  be  made  out  of  the  moneys  due  or  to  become  due  on 
the  account,  and  all  parties  must  have  so  understood  it.  If 
such  is  its  true  construction,  it  was  an  assignment  of  the  fund 
within  all  the  authorities.  It  was  the  plain  duty,  therefore,  of 
the  defendant,  after  notice  of  the  plaintiffs'  rights,  to  apply  the 
money  in  the  order,  and  if  he  afterward  paid  it  over  voluntarily 
to  the  drawers,  he  did  so  in  his  own  wrong. 

The  case  of  Shaver  v.  The  Western  Union  Telegraph  Company, 
57  N.  Y.  459,  is  relied  upon  as  decisive  of  this  case  in  favor  of  the 
respondent.  '  The  circumstances  of  that  case  were  very  peculiar. 


SEC.  11.]  BRILL   Ct   ill.    V.    TUTTLE.  899 

The  order  was  drawn  in  pursuance  of  a  previous  special 
arrangement  known  to  the  payee,  whereby  the  drawer  was 
authorized  to  revoke  it,  and  tliis  was  a  controlling  circumstance 
which  deprived  it  of  the  character  of  an  absolute  assignment. 
Lott,  Com.,  in  delivering  the  opinion,  says  :  "  Notice  was 
'  thereby  given  to  the  party  who  advanced  money  on  the  faith  of 
the  order  that  it  was  not  to  be  considered  an  absolute  assign- 
ment of  the  sums  that  should  become  payable  at  the  end  of 
each  month,  but  that  it  was  subject  to  the  right  of  Borst  (the 
drawer)  to  revoke  it."  "  Any  and  every  person  taking  it  took  ^' 
it  subject  to  the  exercise  of  that  right."  The  order  was  re- 
voked by  the  drawer,  and  whatever  else  may  have  been  said  is  ^ 
unimportant,  as  this  was  the  point  upon  which  the  case  turned. 

Kelly  V.  Mayor,  4  Plill,  263,  is  also  much  relied  upon.  That 
was  not  the  case  of  an  order  drawn  by  a  creditor  upon  his 
debtor  in  favor  of  a  third  party  to  be  charged  against  the  debt, 
but  a  negotiable  draft  drawn  by  the  mayor  of  the  city  upon  the 
treasurer,  "  Pay  to  A.  L.  or  order  $1500  for  award  No.  7,  and 
charge  to  Bedford  road  assessment."  It  was  proved  as  a  fact 
that  at  the  date  of  the  draft  the  treasurer  had  no  funds  in  his 
hands  arising  from  the  Bedford  road  assessment,  but  such 
funds  came  to  his  hands  afterward.  It  was  held  that  the  mere 
direction  of  the  mayor  to  the  treasurer  to  what  account  to 
charge  the  draft  did  not  indicate  any  intention  to  assign  or 
appropriate  any  particular  fund,  and  did  not  deprive  the  instru- 
ment of  its  character  of  a  negotiable  bill  of  exchange. 

On  the  other  hand,  expressions  somewhat  similar,  used  under 
different  circumstances,  have  been  held  to  constitute  such  an 
appropriation.  In  Lovvery  v.  Steward,  25  N.  Y.  239,  the  lan- 
guage of  the  order  was,  "  Pay  on  account  of  twenty-four  bales 
of  cotton  shipped  you  as  per  bill  of  lading  per  steamer  Colo- 
rado." In  this  case  the  prior  correspondence  between  the 
parties  was  also  taken  into  consideration.  In  Parker  v.  The 
City  of  Syracuse,  31  N.  Y.  376,  a  contractor  with  the  city  for 
laying  plank  sidewalks  drew  his  order  on  the  comptroller,  "  Pay 
Parker  &  Wright  $1420  on  plank  road  and  sidewalk  accounts, 
and  charge  to  my  account."  In  Alger  v.  Scott,  54  N.  Y.  14,  an 
order  was  drawn  by  a  landlord  upon  his  tenant  in  August,  1866, 
"  Pay  to  J.  R.  G.  $346,  and  charge  same  to  me,  account  of  rent 
of  house,  13  Cheever  Place."  No  rent  was  due  at  the  time. 
The  tenant  accepted  the  draft,  but  it  was  held  that  this  order 
of  acceptance  constituted  no  defence  to  an  action  by  the  land- 
lord for  the  rent  due  November,  1866,  on  the  ground  that  the 
order  was  not  a  bill  of  exchange,  but  an  equitable  assignment 
of  the  rent,  and  as  such  void   for  want  of  consideration  froni 


900  CARTER   7'.    NICHOLS.  [cHAP.   III. 

the  payee.  In  Ehrichs  v.  De  Mill,  75  N.  Y.  370,  the  language 
of  the  order  was,  "  Pay  to  E.  $400,  and  charge  the  same  to  my 
account  of  grading  and  paving  Lexington  Avenue  between 
Patchen  and  Broadway  as  per  contract."  The  words  "  as  per 
contract"  are  commented  upon  as  indicating  that  the  intention 
was  that  the  payment  should  only  be  made  as  required  by  the 
contract.  See  also  Munger  v.  Shannon,  61  N.  Y.  251,  and 
Risley  v.  Smith,  64  N.  Y.  576.  It  is  useless  to  multiply  refer- 
ences to  authorities,  for  the  question  in  all  this  class  of  cases  is 
the  same,  and  it  must  be  determined  according  to  the  circum- 
stances of  each  case.  It  is  whether  the  draft  is  drawn  upon  the 
general  credit  of  the  drawee  or  upon  a  particular  fund.  When 
the  language  is  ambiguous,  and  the  order  not  negotiable,  as  in 
the  present  case,  the  attendant  circumstances  may  be  shown  to 
determine  the  intention  and  understanding  of  the  parties. 
White's  Bank  v.  Myles,  73  N.  Y.  335. 

The  order  of  the  General  Term  should  be  reversed  and  the 
judgment  on  the  verdict  affirmed. 

All  concur  ;  Finch,  J.,  not  on  bench  at  argument. 

Order  reversed  and  judgment  affirmed. 


WILLIAM    CARTER  v.  JOHN    W.   NICHOLS. 
In  the  Supreme  Court  of  Vermont,  May  Term,  1886. 

[Reported  itt  s^  Vermont  s53-\ 

Assumpsit.  Plea,  general  issue,  and  notice  of  payment  and 
settlement.  Trial  by  Court  on  an  agreed  statement,  September 
Term,  1885,  Powers,  J.,  presiding.  Judgment  for  the  defend- 
ant.    The  facts  are  sufficiently  stated  in  the  opinion. 

Gordon  &'  Gary  for  the  plaintiff. 

S.  C.  Shurtleff  iov  the  defendant. 

The  opinion  of  the  Court  was  delivered  by 

Ross,  J.  The  plaintiff  was  in  the  employment  of  the  defend- 
ant in  1884  at  $20  per  month.  April  12th,  1884,  he  wrote  a  line 
to  the  defendant,  requesting  him  to  pay  to  John  Hardigan,  or 
order,  the  sum  of  $10  per  month  for  the  next  two  months,  and 
the  sum  of  $5  per  month  thereafter  while  he  should  work  for 
the  defendant,  until  a  certain  judgment  against  him  should  be 
paid.  Attached  to  the  writing  was  an  acceptance  and  an  agree- 
ment to  pay  Hardigan  these  sums  as  they  became  due.  The 
order  was  presented  to  the  defendant  with  a  request  that  he 
would  sign  the  acceptance.     This  he  refused  to  do.     The  plain- 


SEC.  II.]  LEGII    c'.    LKGir.  gOI 

tiff  continued  to  work  for  the  defendant  over  tliree  months,  and 
the  defendant  paid  him  in  full  therefor.  This  suit  is  brouglit 
in  the  name  of  the  plaintiff  for  the  benefit  of  Hardigan  to  re- 
cover for  the  sums  named  in  the  order,  that  vifould  have  been 
due  if  the  defendant  had  accepted  the  order.  Hardigan  con- 
tends that  the  order  operated  as  an  assignment  of  that  portion 
of  the  wages  of  the  plaintiff  thereafter  earned,  named  in  the 
order.  It  is  well  settled  that  an  employ^  in  actual  service,  or 
under  a  contract  for  service,  may  make  a  valid  assignment  of 
the  whole  of  his  future  earnings  in  such  service,  and  tliat  the 
employer  on  notice  thereof  will  be  bound  to  pay  the  assignee. 
Thayer  v.  Kelle}',  28  Vt.  19.  In  such  case  the  employer  is  put 
to  no  disadvantage.  But  the  employe  would  have  no  legal 
right,  without  the  consent  of  the  employer,  to  split  up  his  claim 
for  services  and  recover  in  separate  actions.  Neither  can  he 
confer  such  right  upon  an  assignee,  by  making  an  assignment 
or  assignments  of  portions  of  his  earnings  under  the  contract 
to  one  or  more  persons.  The  employer  cannot,  without  his 
consent,  lawfully  be  subjected  to  the  inconveniences  and  com- 
plications which  might  be  incurred  by  such  partial  assignments. 
He  is  under  no  legal  obligation  to  recognize  them,  nor  to  be 
bound  by  them,  and  he  may  for  that  reason  disregard  them. 
Mandeville  v.  Welch,  5  Wheat.  277  ;  Fairgrieves  v.  Lehigh 
Navigation  Co.,  2  Phil.  182  ;  Gibson  v.  Cook,  20  Pick.  15. 

Without  considering  whether  the  writing  would  be  a  good 
equitable  assignment  in  other  respects,  for  the  reasons  already 
stated,  the  judgment  is  affirmed. 


SARAH    LEGH  v.   FRANCES   LEGH. 

In  the  Court  of  Common  Pleas,   May  30,  1799. 
[Reported  in  i  Bosattguet  &-=>  Puller  447.] 

On  a  former  day  Shepherd  showed  cause  against  a  rule  nisi 
obtained  by  Le  Blanc,  for  setting  aside  a  plea  of  release  in  an 
action  on  a  bond,  and  ordering  the  release  to  be  cancelled. 

The  case  as  disclosed  by  the' affidavits  in  support  of  the  rule 
appeared  to  be  this.  Frances  Legh  having  given  a  bond  to 
Sarah  Legh  to  secure  ^TS^  Sarah  assigned  it  to  John  Legh  as 
a  security  for  the  payment  of  a  lesser  sum,  of  which  Frances 
had  notice.  John  having  brought  an  action  on  the  bond  against 
Frances  in  the  name  of  Sarah,  Sarah  gave  a  release  to  Frances 
by  whom  she  had  been  satisfied  her  debt,  and  this  release  was 
pleaded. 


Q02  LEGH    V.    LEGH  [CHAP.  III. 

Eyre,  C.J.  The  conduct  of  this  defendant  has  been  against 
good  faith,  and  the  only  question  is  whether  the  plaintiff  must 
not  seek  relief  in  a  court  of  equity.  The  defendant  ought  either 
to  have  paid  the  person  to  whom  the  bond  was  assigned,  or 
have  waited  till  an  action  was  commenced  against  him,  and 
then  have  applied  to  the  Court.  Most  clearly  it  was  in  breach 
of  good  faith  to  pay  the  money  to  the  assignor  of  the  bond  and 
take  a  release,  and  I  rather  think  the  Court  ought  not  to  allow 
the  defendant  to  avail  himself  of  this  plea,  since  a  court  of 
equity  would  order  the  defendant  to  pay  the  plaintiff  the 
amount  of  his  lien  on  the  bond,  and  probably  all  the  costs  of 
the  application. 

Duller,  J.  There  are  many  cases  in  which  the  Court  has 
set  aside  a  release  given  to  prejudice  the  real  plaintiff.  All 
these  cases  depend  on  circumstances.  If  the  release  be  fraudu- 
lent, the  Court  will  attend  to  the  application. 

The  Court  recommended  the  parties  to  go  before  the  protho- 
notary  in  order  to  ascertain  what  sum  was  really  due  tc  the 
plaintiff  on  the  bond. 

Shepherd  on  this  day  stated  that  the  defendant  objected  to 
going  before  the  prothonotary,  upon  which  the  Court  said  that 
the  rule  must  be  made  absolute.  He  then  applied  for  leave  to 
plead  payment  of  the  bond,  and  contended  that  as  this  was  not 
an  application  under  the  statute  to  plead  several  pleas,  the 
Court  had  no  discretion. 

Eyre,  C.J.  The  Court  has  in  many  cases  refused  to  allow  a 
party  to  take  his  legal  advantage  where  it  has  appeared  to  be 
against  good  faith.  Thus  we  prevent  a  man  from  signing  judg- 
ment who  has  a  right  by  law  to  do  so  if  it  would  be  in  breach 
of  his  own  agreement.  In  order  to  defeat  the  real  plaintiff,  this 
defendant  has  colluded  with  the  nominal  plaintiff  to  obtain  a 
release,  and  I  think  therefore  the  plea  of  release  may  be  set 
aside  consistently  with  the  general  rules  of  the  Court.  And  if 
so,  the  defendant  cannot  be  permitted  to  plead  payment  of  the 
bond,  as  that  would  amount  to  the  same  thing. 

BuLLER,  J.  The  Court  proceeds  on  the  ground  that  the  de- 
fendant has  in  effect  agreed  not  to  plead  payment  against  the 
nominal  obligee. 

Upon  this  the  defendant  consented  to  go  before  the  protho- 
notary. 


3EC..II.]  WELCH    V.    MANDEVILLE.  903 


LITTLEFIELD  v.  STOREY. 

In  the  Supreme  Court  of  Judicature  of  New  York, 
August,  1808. 

\Reporied  in  2,  Johftson's  Reports  425. J 

This  was  an  action  of  debt.  The  declaration  contained  two 
counts  on  two  obligations  for  $100  each.  The  defendant 
pleaded  ?}on  est  factum,  and  that  on  August  ist,  1806,  he  paid  to 
the  plaintiff  the  money  due  on  the  obligations.  The  plaintiff 
replied  that  before  the  commencement  of  the  present  suit,  and 
before  the  said  August  ist,  1806,  he  sold  and  assigned  over  the 
said  obligations  to  one  Z.  R.  Shepherd,  to  have  and  receive  the 
money  due  thereon  to  his  own  use,  and  did  authorize  him,  in 
the  name  of  him,  the  plaintiff,  to  demand  and  receive  the  same 
to  the  use  and  benefit  of  him,  the  said  Shepherd,  of  which  the 
defendant  had  notice  ;  and  the  plaintiff  averred  that  this  action 
was  commenced  for  the  sole  use  and  benefit  of  the  said  Shep- 
herd, for  the  purpose  of  enabling  him  to  collect  and  receive  the 
money  due  on  the  obligations. 

To  this  replication  there  was  a  general  demurrer  and  joinder. 

Western  in  support  of  the  demurrer. 

Z.  R.  Shepherd,  cotitra,  was  stopped  by  the  Court. 

Per  Curiam.  This  is  a  clear  case.  It  has  been  decided  that 
this  Court  will  recognize  and  protect  the  rights  of  an  assignee 
of  a  chose  in  action. 

In  the  case  of  Andrews  v.  Beecker  it  was  held  that  a  release 
by  the  obligee  of  a  bond,  after  an  assignment  and  notice,  was  a 
nullity.     See  also  Legh  v.  Legh,  i  Bos.  &  Pull.  447. 

Judgnient  for  the  plaintiff. 


WELCH  V.  MANDEVILLE. 

,In  the  Supreme  Court  of  the  United  States,  February 

Term,  1816. 

\Reported  in  i   Wheatoii's  Reports  233.] 

Error  to  the  Circuit  Court  for  the  District  of  Columbia  for 
Alexandria  County.  This  was  an  action  of  covenant  brought 
in  the  name  of  Welch  (for  the  use  of  Prior)  against  Mandeville 
and  Jamieson.  The  suit  abated  as  to  Jamieson  by  a  return  of 
no  inhabitant.  The  defendant,  Mandeville,  filed  two  pleas. 
The  second  plea,  upon  which  the  question  in  this  Court  arises, 
states,  that,  on  July  5th,  1806,  James  Welch  impleaded  Mande- 


904 


WELCH   V.    MANDEVILLE.  [CHAP.  III. 


ville  and  Jamieson,  in  the  Circuit  Court  of  the  District  of  Co- 
lumbia, for  the  county  of  Alexandria,  in  an  action  of  covenant, 
in  which  suit  such  proceedings  were  had,  that,  afterward,  to 
wit,  at  a  session  of  the  Circuit  Court,  on  December  31st,  1807, 
"  the  said  James  Welch  came  into  Court  and  acknowledged 
that  he  would  not  farther  prosecute  his  said  suit,  and  from 
thence  altogether  withdraw  himself."  The  plea  then  avers, 
that  the  said  James  Welch,  in  the  plea  mentioned,  is  the  same 
person  in  whose  name  the  present  suit  is  brought,  and  that  the 
said  Mandeville  and  Jamieson,  in  the  former  suit,  are  the  same 
persons  who  are  defendants  in  this  suit,  and  that  the  cause  of 
action  is  the  same  in  both  suits.  To  this  plea  the  plaintiff 
filed  a  special  replication,  protesting  that  the  said  James  Welch 
did  not  come  into  Court  and  acknowledge  that  he  would  not 
farther  prosecute  the  said  suit  and  from  thence  altogether  with- 
draw himself  ;  and  avers  that  James  Welch,  being  indebted  to 
Prior,  in  more  than  $8707.09,  and  Mandeville  and  Jamieson  being 
indebted,  by  virtue  of  the  covenant  in  the  declaration  mentioned, 
in  $8707.09,  to  Welch,  he,  Welch,  on  September  7th,  1799,  by  an 
equitable  assignment,  assigned  to  Prior,  for  a  full  and  valuable 
consideration,  the  said  $8707.09,  in  discharge  of  the  said  debt,  of 
which  assignment  the  replication  avers  Mandeville  and  Jamie- 
son had  notice.  The  replication  further  avers,  that  the  suit  in 
the  plea  mentioned  was  brought  in  the  name  of  Welch,  as  the 
nominal  plaintiff  for  the  use  of  Prior,  and  that  the  defendant, 
Mandeville,  knew  that  the  said  suit  was  brought,  and  was  de- 
pending for  the  use  and  benefit  of  the  said  Prior  ;  and  that  the 
said  suit  in  the  plea  mentioned,  without  the  authority,  consent, 
or  knowledge  of  the  said  Prior,  or  of  the  attorney  prosecuting 
the  said  suit,  and  without  any  previous  application  to  the  court, 
was  "  dismissed,  agreed."  The  replication  farther  avers,  that 
the  said  James  Welch  was  not  authorized  by  the  said  Prior  to 
agree  or  dismiss  the  said  suit  in  the  plea  mentioned  ;  and  that 
the  said  Joseph  Mandeville,  with  whom  the  supposed  agree- 
ment for  the  dismissal  of  the  said  suit  was  made,  knew,  at  the 
time  of  making  the  said  supposed  agreement,  that  the  said 
James  Welch  had  no  authority  from  Prior  to  agree  or  dismiss 
said  suit.  The  replication  farther  avers,  that  the  said  agree- 
ment and  dismissal  of  the  said  suit  were  made  and  procured  by 
the  said  Joseph  Mandeville,  with  the  intent  to  injure  and  de- 
fraud the  said  Prior,  and  deprive  him  of  the  benefit  of  the  said 
suit  in  the  plea  mentioned.  The  replication  also  avers,  that  the 
said  Prior  did  not  know  that  the  said  suit  was  dismissed  until 
after  the  adjournment  of  the  Court  at  which  it  was  dismissed  ; 
and,  farther,  that  the  supposed  entry  upon   the   record   of  the 


SEC.  II.]  WELCH    V.    MAXDEVIIJ.E.  905 

Court  in  said  suit,  that  the  plaintiff  voluntarily  came  into  Court 
and  acknowledged  that  he  would  not  further  prosecute  his  said 
suit,  and  from  thence  altogether  withdraw  himself,  and  the 
judgment  thereupon  was  made  and  entered  by  covin,  collusion, 
and  fraud  ;  and  that  the  said  judgment  was,  and  is,  fraudulent. 
To  this  replication  the  defendant  filed  a  general  demurrer,  and 
the  replication  was  overruled.  It  appeared  by  the  record  of 
the  suit  referred  to  in  the  plea,  that  the  entry  is  made  in  these 
words  :  "  This  suit  is  dismissed,  agreed,"  and  that  this  entry 
was  made  by  the  clerk  without  the  order  of  the  Court,  and 
that  there  is  no  judgment  of  dismissal  rendered  by  the  Court, 
but  only  a  judgment  refusing  to  reinstate  the  cause. 

Zee  for  the  plaintiff. 

Swann  for  the  defendant. 

Story,  J.,  delivered  the  opinion  of  the  Court. 

The  question  upon  these  pleadings  comes  to  this,  whether  a 
nominal  plaintiff,  suing  for  the  benefit  of  his  assignee,  can,  by 
ii  dismissal  of  the  suit  under  a  collusive  agreement  with  the 
defendant,  create  a  valid  bar  against  any  subsequent  suit  for 
the  same  cause  of  action. 

Courts  of  law,  following  in  this  respect  the  rules  of  equity, 
now  take  notice  of  assignments  of  choses  in  action,  and  exert 
themselves  to  afford  them  every  support  and  protection  not 
inconsistent  with  the  established  principles  and  modes  of  pro- 
ceeding which  govern  tribunals  acting  according  to  the  course 
of  the  common  law.  They  will  not,  therefore,  give  effect  to  a 
release  procured  by  the  defendent  under  a  covenous  combina- 
tion with  the  assignor  in  fraud  of  his  assignee,  nor  permit  the 
assignor  injuriously  to  interfere  with  the  conduct  of  any  suit 
commenced  by  his  assignee  to  enforce  the  rights  which  passed 
under  the  assignment.  The  dismissal  of  the  former  suit,  stated 
in  the  pleadings  in  the  present  case,  was  certainly  not  a  retraxit ; 
and  if  it  had  been,  it  would  not  have  availed  the  parties,  since 
it  was  procured  by  fraud.  Admitting  a  dismissal  of  a  suit,  by 
agreement,  to  be  a  good  bar  to  a  subsequent  suit  (on  which 
we  give  no  opinion),  it  can  be  so  only  when  it  is  bona  fide,  and 
not  for  the  purpose  of  defeating  the  rights  of  third  persons. 
It  would  be  strange,  indeed,  if  parties  could  be  allowed,  under 
the  protection  of  its  forms,  to  defeat  the  whole  objects  and  pur- 
poses of  the  law  itself. 

It  is  the  unanimous  opinion  of  the  Court,  that  the  judgment 
of  the  Circuit  Court,  overruling  the  replication  to  the  second 
plea  of  the  defendant,  is  erroneous,  and  the  same  is  reversed, 
and  the  cause  remanded  for  further  proceedings. 

Judgment  reversed. 


906  PARSONS   V.   WOODWARD.  [CHAP.  III. 

PARSONS  V.  WOODWARD. 

In  the  Supreme  Court  of  New  Jersey,  July  Term,  1849. 

[Reported  in  2  Zabriskte  196.  J 

This  is  an  action  of  covenant,  and  the  plaintiff  declared  as 
follows  : 

"  For  that  whereas  heretofore,  to  wit,  on  (January  19th, 
1839),  at  M.  H.,  in  the  county  of  B.,  and  within  the  jurisdiction 
of  this  Court,  by  certain  articles  of  agreement,  etc.,  making 
profert,  it  was  agreed,  by  and  between  the  said  parties,  that  the 
defendant,  for  four  thousand  morus  multicaulis  trees,  on  the 
day  and  year  last  aforesaid,  sold  to  him  by  the  plaintiff,  and  by 
him  to  be  delivered  upon  the  ground  where  the  said  trees 
should  grow,  in  the  fall  months  of  the  year  aforesaid,  the 
trees  to  be  at  least  three  feet  high  and  as  much  above  as  they 
should  grow,  root,  stalk,  and  branch,  would  pay  to  the  plaintiff 
the  sum  of  twelve  and  a  half  cents  per  tree  for  each  and  every 
tree  so  as  aforesaid  sold  and  described,  when  they  should  be 
delivered  in  the  fall  aforesaid.  And,  for  the  faithful  perform- 
ance of  the  said  agreement,  the  said  parties  bound  themselves, 
etc  ,  in  the  sum  of  $1000,  as  by  said  articles,  etc.,  would  appear." 
The  declaration  then  avers  that  the  plaintiff,  afterward,  in  the 
fall  of  the  year  aforesaid,  to  wit,  on  November  21st,  in  the  year 
aforesaid,  had  on  five  several  lots  of  ground,  situate  in  the 
township  of  C,  in  said  county,  four  thousand  morus  multi- 
caulis trees,  grown  upon  said  lots,  of  the  description  named  in 
the  agreement,  ready  to  be  delivered,  on  said  lots,  to  the  de- 
fendant, where  they  remained  ready  to  be  delivered,  of  which 
the  defendant  afterward,  on,  etc.,  at,  etc.,  had  notice  ;  and 
although  the  defendant  was  requested  to  come  to  the  lots  and 
accept  the  trees,  and  pay  therefor,  yet  he  refused  to  accept  and 
pay,  and  still  continues,  etc.,  contrary  to  his  agreement,  etc., 
concluding  in  the  usual  form  of  breach  in  such  cases. 

The  second  count  is  similar  to  the  first,  with  this  exception, 
that  it  does  not  state  the  number  of  lots  upon  which  the  trees 
were  situate,  but  avers  generally  that  the  plaintiff  had  them 
upon  the  ground  where  they  had  grown,  in  the  township  of  C, 
etc.,  ready  to  be  delivered,  etc. 

To  this  declaration  the  defendant  pleaded  : 

7.  Actio  non  :,  because,  he  says,  that  after  the  making  and 
executing  the  said  articles  of  agreement,  to  wit,  on  March  20th, 
1839,  the  said  plaintiff  made  and  executed  to  Craig  Moffett  and 
Mathew  McHenry  a  deed  of  assignment  of  all  his  lands,  tene- 


SEC.  II.]  PARSONS   V.    WOODWARD.  go/ 

ments,  and  hereditaments,  goods,  chattels,  moneys,  and  effects, 
rights  and  credits  whatsoever,  and  generally  all  his  estate  and 
property,  real  and  personal,  for  the  equal  benefit  of  his  credit- 
ors, pursuant  to  the  statute  in  such  case  made  and  ]irovided  ; 
that  the  said  assignees  did  accept  of  the  said  assignment, 
whereby  the  said  plaintiff  became  and  was  divested  of  all  his 
estate,  leal  and  personal,  and  of  all  interest  whatsoever  in  and 
to  the  said  articles  of  agreement,  and  the  same  became  and  was 
vested  in  the  said  Craig  Moffett  and  Mathew  McHenry,  as 
assignees  as  aforesaid  ;  and  this  he,  the  said  defendant,  is  ready 
to  verify  ;  wherefore  he  prays  judgment,  etc. 

To  the  seventh  plea  the  plaintiff  replied  : 

Precludi  non  :  because,  he  saith,  that  before  the  making  and 
execution  of  the  deed  of  assignment  in  the  said  plea  mentioned, 
to  wit,  on  March  i8th,  1839,  at,  etc.,  he,  the  said  plaintiff,  by 
writing  under  his  hand  endorsed  on  said  articles,  and  for  and 
in  consideration  of  the  sum  of  $10,  to  him  paid  by  one  John 
Hitchens,  did  assign  all  the  right,  title,  and  interest  of  the  said 
plaintiff  to  the  said  articles  of  agreement  to  the  said  John 
Hitchens,  and  did  authorize  him  to  fulfil  the  contract  contained 
in  said  articles,  as  fully  as  the  said  plaintiff  himself  could  have 
done,  and  did  then  and  there  deliver  the  said  articles  to  the  said 
John  Hitchens,  of  which  said  several  premises  the  said  defend- 
ant afterward,  to  wit,  on  the  day  and  year  last  aforesaid,  had 
notice.  And  the  said  plaintiff  further  saith,  that  the  writ  ot 
summons  in  this  case  was  sued  out  in  the  name  of  him,  the 
said  plaintiff,  for  the  use  and  on  the  behalf  of  the  said  John 
Hitchens,  and  for  the  purpose  of  enabling  him,  the  said  John 
Hitchens,  to  recover  and  receive  the  said  sum  of  money  stipu- 
lated to  be  paid  by  the  said  defendant,  upon  the  delivery  to 
him  of  the  said  trees  in  the  said  declaration  mentioned,  accord- 
ing to  the  form  and  effect  of  the  said  articles  of  agreement,  and 
not  for  the  benefit,  use,  or  behoof  of  the  said  plaintiff  ;  that  is 
to  say,  at,  etc.,  and  this  he  is  ready  to  verify  ;  wherefore  he 
prays  judgment  and  his  damages,'  etc. 

Argued  before  Nevius,  Carpenter,  and  Ogden,  JJ. 

JV.  L.  Dayton  for  plaintiff. 

P.  D.  Vroom,  contra. 

Carpenter,  J.,  delivered  the  opinion  of  the  Court. 

The  case,  as  presented  by  the  pleadings,  is  in  substance  this  : 
The  parties,  January  19th,  1839,  entered  into  this  covenant,  that 
the  defendant,  for  four  thousand  morus  multicaulis  trees,  on 
that  day  sold   to   him   by  the   plaintiff,  to   be  delivered  on  the 

'  Only  so  much  of  the  case  is  given  as  relates  to  the  question  raised  by 
the  seventh  plea  and  the  replication  thereto. — Ed. 


poS  PARSONS   V.    WOODWARD.  [chap.  III. 

ground  where  the  said  trees  should  grow,  in  the  fall  months  of 
the  same  year,  and  to  be  of  a  stipulated  character,  would  pay 
the  plaintiff  twelve  and  a  half  cents  for  each  tree  so  as  afore- 
said sold  and  described,  when  they  should  be  delivered.  On 
March  i8th,  1839,  the  plaintiff,  by  endorsement  on  the  covenant, 
assigned  his  interest  in  the  contract  to  one  John  Hitchens  ; 
and  on  March  20th,  1839,  the  plaintiff  made  a  general  assign- 
ment, under  the  statute,  for  the  benefit  of  his  creditors. 

The  replication  to  the  seventh  plea  presents  the  question, 
whether  the  contract  was  one  which  could  be  assigned,  and  the 
beneficial  interest  pass  under  such  assignment  to  Hitchens  ;  so 
that  he  could  fulfil  the  terms  of  the  contract,  and  maintain  an 
action  for  its  breach  against  the  opposite  party,  in  the  name  of 
the  plaintiff.  If  it  can  so  pass,  by  priority  in  time,  undoubtedly, 
it  will  be  protected  against  the  subsequent  general  assignment. 

It  was  a  well  known  rule  of  the  common  law,  that  a  mere 
thing  in  action  was  not  assignable  at  law,  with  the  exception  of 
negotiable  instruments,  unless  by  statute  ;  such  is  still  the 
general  rule,  at  least  without  the  assent  of  the  debtor.  But  it 
is  otherwise  in  equity,  where  one  party  may  purchase  by  assign- 
ment the  whole  interest  of  another  in  a  contract,  or  security  or 
other  property,  even  in  litigation,  provided  there  be  nothing 
which  savors  of  maintenance.  Thus  an  equitable  interest  under 
a  contract  for  the  purchase  of  real  estate  may  be  the  subject  of 
sale,  the  original  holder  becoming  in  such  case  a  trustee  for  the 
sub-purchaser  to  whom  such  sale  is  made  ;  and  he  will  be  com- 
pelled, under  proper  indemnity,  to  permit  his  name  to  be  used 
in  any  proceedings  necessary  for  obtaining  the  benefit  of  the 
contract.  Even  unearned  freight  has  been  held  the  subject  of 
equitable  agreement  or  assignment,  which  will  be  protected  at 
law  as  well  as  in  equity.  Leslie  v.  Guthrie,  i  Bing.  N.  Cases, 
699.     See  2  Story  Eq.  Jur.,  §  1050,  1055,  and  Cases. 

The  doctrine  of  equitable  assignments,  having  its  origin  in 
courts  of  equity,  has  been  followed  to  a  great  extent  in  courts 
of  law,  though  the  mode  in  which  equitable  rights  are  there 
protected  or  enforced  is  limited  by  technical  forms  and  arbi- 
trary rules.  So  far  have  courts  gone  that  it  has  even  been  said 
of  the  ancient  rule,  that  choses  in  action  are  not  assignable, 
that  it  only  remains  to  give  form  to  some  legal  proceedings. 
One  form  in  which  the  rule  still  remains  is,  that  when  a  debL 
or  other  chose  in  action  is  assigned,  ordinarily  it  is  necessary  to 
sue  at  law  in  the  name  of  the  original  creditor,  the  person  to 
whom  transferred  being  treated  rather  as  an  attorney  than  an 
assignee  ;  though  his  rights  will  be  recognized  and  protected, 
to    some    extent   at   least,  even    in    a   court   of   law.     Sloan  v. 


SEC.  II.]  BRICE   V.    BAXNISTER.  9O9 

Somers,  2  Green,  510  ;  Winch  v.  Keeley,  i  T.  R.  619  ;  Welch  v. 
Mandeville,  5  Wheat.  277.  It  was  said  by  Justice  Story,  who 
delivered  the  opinion  of  the  Court  in  tlie  last  case,  that  courts 
of  law,  following  in  this  respect  tlie  rules  of  equity,  now  notice 
assignments  of  choses  in  action,  and  exert  themselves  to  afford 
them  any  support  and  protection  not  inconsistent  with  the 
established  principles  and  modes  of  proceeding  which  govern 
tribunals  according  to  the  course  of  the  common  law. 

The  authorities  referred  to  in  the  progress  of  this  opinion 
clearly  show  that  beneficial  contracts  are  assignable  inequity, 
in  which  case,  when  bona  Jide  and  for  a  valuable  consideration, 
the  assignor  becomes  a  trustee  for  the  assignee,  who  is  autlior- 
ized  to  use  the  name  of  the  former  to  enforce  the  interest  which 
he  has  acquired.  The  necessary  steps  may  be  taken  by  the 
assignee,  as  the  attorney  or  agent  of  the  assignor,  though  for 
his  own  benefit  ;  and  such  equitable  assignment  previous  to 
bankruptcy  or  insolvenc}^  when  necessary  may  be  pleaded, 
many  instances  of  which  might  be  cited.  See  Parnham  v. 
Hurst,  8  M.  &  W,  743,  and  Winch  v.  Keeley,  already  cited. 
When  the  plea,  as  here,  sets  up  the  insolvency  of  the  assignor, 
the  proper  answer  in  the  replication  is,  that  the  debt  or  con- 
tract, though  in  the  name  of  the  plaintiff,  yet  in  substance  be- 
longs to  a  third  party,  and  therefore  did  not  pass  under  the 
assignment  for  the  benefit  of  the  creditors  ;  if  not,  it  is  still  in 
the  plaintiff,  for  the  benefit  of  such  third  person,  and  the  action 
can  be  maintained. 

The  pleas  demurred  to  are  overruled,  and  the  replication  to 
the  seventh  plea  sustained. 

Judgment  for  the  plaintiff. 


BRICE  V.   BANNISTER. 

In  the  Court  of  Appeals,  May   18,  1878. 

{Reported  in  Law  Reports,  3  Oti'een's  Bettch  Divtstoti  560.] 

Claim  stated  that  John  Gough,  by  an  order  in  writing  under 
his  hand,  directed  to  the  defendant,  bearing  date  on  or  about 
October  27th,  1876,  absolutely  assigned  to  the  plaintiff  the  sum 
of  ^100,  money  due  or  to  become  due  of  John  Gough  in  the 
hands  of  the  defendant,  of  which  order  due  notice  was  given  to 
the  defendant,  and  the  defendant  thereupon  accepted  the  same. 
At  the  time  of  the  making  of  the  order  in  writing  and  at  the 
time  of  notice  thereof  to  the  defendant  he  was  indebted  to  John 


9IO 


BRICE   V.    BANNISTER.  [cHAP.  III. 


Gough  in  divers  sums  of  money  more  than  sufficient  to  pay  the 
sum   of  ^loo  assigned   by  John   Gough  to  the   plaintiff.     The 
plaintiff  had  on   more   than   one   occasion  demanded  from  the 
defendant  payment  of  the  sum  of  ^loo,  but  the  defendant  had 
not  paid  it  or  any  part  of  it. 

The  nature  of  the  defence  appears  from   the  facts  hereinafter 
stated. 

At  the  trial  at  the  Somersetshire  Summer  Assizes,  1877,  be- 
fore Lord  Coleridge,  C.J.,  without  a  jury,  the  following  facts 
were   proved.     The   plaintiff   is  a  solicitor  at  Biidgwater,  and 
the   defendant   is  a  shipowner   residing  at  Barrow-in-Furness. 
The  defendant  had  entered  into  a  contract  with  John  Gough, 
dated  May  17th,  1876,  by  which  Gough  agreed  to  build  for  the 
defendant   a  vessel   on   certain   terms.     The   material    part    of 
the   contract  is  as  follows  :   "  The  vessel  to  be  completed  by 
December  30th,  1876,  for  the  sum  of  ^1375.     Payments  to  be 
made  as  follows  : 

When  keel  and  stern  post  up  and  floors  across    .  ^250 
When  in  frame       .......       250 

When  planked        .......       400 

and    the    remainder   when    completed    and    handed    over   with 
Lloyd's,  Board  of  Trade,  and  builder's  certificates." 

The  contract  was  in  the  course  of  being  performed  by  John 
Gough  between  the  date  of  the  contract.  May  17th,  1876,  and 
the  completion  of  the  vessel,  February  nth,  1877.  The  first 
instalment  under  the  contract  became  due  on  June  22d,  1876, 
the  second  instalment  became  due  on  October  nth,  1876,  and 
the  third  instalment  became  due  on  November  23d,  1876,  and  the 
remainder  was  due  on  the  completion  of  the  vessel,  February 
nth,  1877. 

Gough  was  unable  to  finish  the  vessel  without  assistance 
from  the  defendant,  and  therefore  during  the  progress  of  the 
building  the  latter  advanced  to  him  sums  of  money,  which  were 
necessary  to  enable  him  to  pay  the  wages  of  his  workmen  em- 
ployed in  building  the  vessel  and  to  pay  for  the  materials  used 
in  constructing  her.  The  total  amount  of  these  advances  upon 
October  27th,  1876,  was  ^1015.  That  sum  was  in  excess  of  the 
amount  then  due  pursuant  to  tlie  contract. 

On  October  27th,  1876,  Gough,  being  indebted  to  the  plain- 
tiff to  an  amount  exceeding  ^2000,  gave  the  plaintiff  an  order 
addressed  to  the  defendant  in  the  following  terms  : 

"  I  do  hereby  order,  authorize,  and  request  you  to  pay  to  Mr. 
William  Brice,  Solicitor,  Biidgwater,  the  sum  of  ^100  out  of 
moneys  due  or  to  become  due  from  you  to  me,  and  his  receipt 
for  same  shall  be  a  good  discharge." 


SEC.  II.]  BRICE   V.    LAXXISTKR.  9I  I 

On  the  same  day,  October  27th,  1876,  the  plaintiff  gave  the 
defendant  written  notice  of  tiie  order  in  the  following  terms  : 

"  I  hereby  give  you  notice  that  by  a  memorandum  in  writing 
dated  October  27th,  1876,  John  Gough,  of  this  place,  authorized 
and  requested  you  to  pay  me  the  sum  of  ;i/^ioo  out  of  money 
due  or  to  become  due  from  you  to  him,  and  my  receipt  for 
the  same  shall  be  a  good  discharge." 

The  defendant  acknowledged  the  receipt  of  the  notice,  but  de- 
clined to  be  bound  by  it  as  an  authority  to  pay^ioo  to  the  plaintiff. 

Subsequently  to  the  receipt  of  the  notice,  the  defendant  paid 
to  Gough  on  account  of  the  building  of  the  vessel,  pursuant  to 
the  contract,  sums  far  exceeding  ^100  ;  and  unless  the  defend- 
ant had  made  such  payments  to  Gough,  he  would  not  have 
been  able  to  complete  the  vessel. 

On  these  facts  it  was  contended  by  the  defendant's  counsel 
that  the  judgment  ought  to  be  entered  for  the.  defendant,  on 
the  following  grounds  : 

1.  That  at  the  time  of  giving  the  order  there  was  nothing  due 
to  Gough,  and  therefore  there  was  nothing  which  could  be 
assigned  by  him  to  the  plaintiff  by  virtue  of  the  Judicature  kcA, 
1S73,  §  25,  sub-sec.  6.' 

2.  That  there  was  no  binding  acceptance  of  the  order  by  the 
defendant. 

3.  That  had  not  the  defendant  made  advances  to  Gough  or 
to  his  creditors,  other  than  the  plaintiff,  Gough  would  never 
have  been  in  a  position  to  become  a  cieditor  of  the  defendant.'' 

'  By  the  Supreme  Court  of  Judicature  Act,  1S73  (36  &  37  Vict.,  c.  66).  §  25, 
sub-sec.  6,  "  Any  absolute  assignment  by  writing  under  the  hand  of  the 
assignor  (not  purportmg  to  be  by  way  of  charge  only)  of  any  debt,  or  other 
legal  chose  in  action,  of  which  express  notice  in  writing  shall  have  been 
given  to  the  debtor,  trustee,  or  other  person  from  whom  the  assignor  would 
have  been  entitled  to  receive  or  claim  such  debt  or  chose  in  action,  shall  be 
and  be  deemed  to  have  been  effectual  in  law  (subject  to  all  equities  which 
would  have  been  entitled  to  priority  over  the  right  of  the  assignee  if  this 
Act  had  not  passed)  to  pass  and  transfer  the  legal  right  to  such  debt 
or  chose  in  action  from  the  date  of  such  notice,  and  all  legal  and  other 
remedies  for  the  same,  and  the  power  to  give  a  good  discharge  for  the  same 
without  the  concurrence  of  the  assignor  :  Provided  always,  that  if  the 
debtor,  trustee,  or  other  person  liable  in  respect  of  such  debt  or  chose  in 
action  shall  have  had  notice  that  such  assignment  is  disputed  by  the  assign- 
or or  any  one  claiming  under  him,  or  of  any  other  opp-jsing  or  conflicting 
claims  to  such  debt  or  chose  in  action,  he  shall  be  entitled,  if  he  think  fit,  1 1 
call  upon  the  several  persons  making  claim  thereto  to  interplead  concerning 
the  same,  or  he  may,  if  he  think  fit,  pay  the  same  into  the  High  Court  of 
Justice,  under  and  in  conformity  with  the  provisions  of  the  Acts  for  the 
relief  of  trustees." 

■2  Lord  Coleridge,  C.J.,  whose  opinion  has  been  omitted,  directed  judg- 
ment to  be  entered  for  the  plaintiff  for  ^  100.  — Ed. 


912 


BRICE   V.    BANNISTER. 


[chap.  III. 


Cole,  Q.C.,  and  Bullcji  for  the  defendant. 

A.  Charles,  Q.C.,  and  Herbert  Reedior  the  plaintiff. 

The  following  judgments  were  delivered  : 

CoTTOX,  L.J.  The  letter  of  October  27th  is  a  good  equitable 
assignment  by  Gough  to  the  plaintiff  of  money  to  the  extent  of 
-f\oo,  which  might  become  due  under  his  contract  with  the 
defendant.  To  this  extent  he  thereby  anticipated  the  moneys 
payable  from  the  defendant  to  him,  and  Gough  became  incom- 
petent to  deal  witli  these  moneys  to  plaintiff  Brice's  prejudice, 
and  the  defendant,  after  notice  of  the  letter,  could  not  come  to 
any  agreement  with  Gough  dealing  with  or  anticipating  these 
moneys  to  the  prejudice  of  the  plaintiff.  At  the  time  when 
notice  of  the  letter  of  October  27th  was  given  to  the  defendant, 
the  balance  of  the  contract  price  which  remained  unpaid  ex- 
ceeded ^({^loo,  and  the  ship  has  been  completed  under  the  con- 
tract. The  question  is  whether  in  substance  what  has  been 
done  by  Bannister  and  Gough  was  not  a  dealing  with  the 
moneys  payable  under  the  contract  ;  I  think  it  was.  The  con- 
tention of  the  defendant  was  that  though,  after  notice  of  the 
assignment  to  the  plaintiff  he  had  paid  moneys  exceeding  ^100 
to  Gough,  he  did  so  not  in  payment  of  the  price  or  under  the 
contract,  but  that  the  advances  were  necessary  in  order  to 
secure  the  completion  of  the  ship.  But  this  is  not  a  case 
where  the  builder  having  failed  in  his  contract  the  person  for 
whom  he  was  building  put  an  end  to  the  contract  and  com- 
pleted the  work.  In  such  a  case,  the  builder,  if  he  in  fact 
completed  the  work,  would  be  employed  as  agent  or  servant 
doing  the  work  for  the  owner  of  the  vessel.  Here  the  builder 
completed  the  work  as  contractor  building  under  a  contract 
with  the  defendant,  and  this  is  the  distinction  between  this  case 
and  Tooth  v.  Hallett'  where  the  work  was  completed  after  the 
bankruptcy  of  the  builder  by  his  trustee  out  of  his  own  moneys, 
and  the  person  for  whom  the  work  was  done  had  power  to  take 
possession  and  employ  any  one  to  complete  the  building,  and 
in  effect  he  did  so,  and  the  Court  allowed  the  expenditure 
against  the  equitable  assignee.  It  is  probable  that  Gough 
would  not,  unless  he  had  obtained  the  advances  made  by  the 
defendant  either  from  him  or  from  some  other  person,  have 
been  able  to  complete  the  vessel  ;  but  a  charge  for  the  money 
lent  after  October  27th,  by  any  other  person  for  the  purpose  of 
paying  wages  or  buying  material  necessary  for  the  completion 
of  the  ship,  and  in  that  sense  necessary  to  enable  the  money  to 
become  due  to  Gough,  could  not  be  preferred  to  the  plaintiff's 
claim.  Moneys  paid  for  the  same  purpose  to  Gough  by  the 
'  Law  Rep.  4  Ch.  App.  242. 


SEC.  II.]  BRICE   Z'.    BANNISTER. 


9'3 


defendant  cannot,  in  my  opinion,  stand  in  a  better  position. 
It  was  urged  that  the  assignee  of  a  chose  in  action  takes  subject 
to  all  equities.  But  these  must  be  equities  existing  or  arising 
out  of  circumstances  existing  before  notice  is  given  of  the 
assignment  ;  the  advances  made  by  the  defendant  were  in  no 
way  sanctioned  by  the  contract,  and  in  no  sense  an  equity  be- 
tween Gough  and  the  defendant  existing  or  arising  from  cir- 
cumstances existing  at  the  date  of  the  notice  to  the  defendant 
of  the  assignment  to  the  plaintiff.  The  plaintiff  was  assignee 
for  value  of  the  moneys  payable  under  the  contract,  with- 
out any  deduction  for  cost  of  materials  or  other  costs  of  con- 
struction. The  defendant,  for  his  own  purposes,  determined 
not  to  complete  the  ship  himself,  but  to  let  Gough  do  so 
under  the  contract.  To  enable  him  to  do  so  he,  after  notice 
of  the  assignment  to  the  plaintiff,  paid  money  to  Gough 
so  as  to  exhaust  the  contract  price.  By  so  doing,  he  could 
not,  in  my  opinion,  defeat  or  prejudice  the  plaintiff's  right, 
and  the  judgment  appealed  from  must  in  my  opinion  be 
affirmed. 

Brett,  L.J.  I  am  sorry  to  say  that,  with  great  hesitation,  I 
differ  from  the  judgment  which  has  been  read.  I  consider  the 
principle  involved  in  this  case  to  be  of  the  highest  importance. 
The  defendant  and  Gough  were  parties  to  a  contract  for  build- 
ing a  ship,  the  price  of  which  was  to  be  paid  by  instalments  at 
different  stages  of  the  building,  and  the  ship  was  to  become  the 
property  of  the  purchaser  according  to  the  different  times  of 
the  payments.  Before  the  ship  was  finished  the  builder, 
through  want  of  funds,  became  unable  to  proceed  with  the 
work.  I  do  not  mean  to  say  that  there  is  any  finding  that  the 
defendant  as  purchaser  was  compelled  to  take  possession  of 
the  ship  if  he  did  not  advance  money  ;  but  practically  if  he  did 
not  advance  money  the  ship  must  have  been  thrown  upon  his 
hands,  and  he  must  have  completed  the  building  of  the  ship,  a 
most  onerous  charge  upon  him.  It  is  an  ordinary  mode  of 
meeting  a  difficulty  of  this  kind,  an  ordinary  mode  of  transact- 
ing business,  either  that  the  purchaser  shall  take  the  ship  into 
his  own  hands,  or  that  he  and  the  builder  shall  agree  to  modify 
the  contract,  so  that  he,  instead  of  paying  the  purchase-money 
after  a  stage  of  work  is  completed,  should  advance  the  money 
beforehand  ;  or,  as  it  may  be  put  in  another  way,  the  pur- 
chaser, when  the  builder  is  in  difficulties,  before  the  time  of 
payment  fixed  by  the  contract  has  arrived,  advances  money 
upon  the  terms  that  he  is  to  repay  himself  out  of  the  money 
which  he  would  have  to  pay  when  a  particular  stage  is  com- 
pleted.    It  is  true  that  the  builder,  in  consideration  of  money 


pi4  BRICE   V.    BANNISTER.  [CHAP.  IIL 

previously  advanced  by  the  plaintiff,  made  an  equitable  assign- 
ment to  him  of  the  money  which  would  become  due  to  him  at  a 
following  stage,  and  he  afterward  did  procure  an  advance  be- 
fore the  appointed  time  from  the  defendant,  in  order  to  enable 
him  to  complete  the  ship.  It  is  true  that  the  defendant  had 
notice  of  this  so-called  equitable  assignment  ;  but  it  was  a 
matter  between  the  builder  of  th6  ship  and  a  third  person,  over 
which  the  defendant,  the  purchaser  of  the  ship,  had  no  control  ;\ 
and  the  question  is  whether  we  are  to  allow  an  equitable  doc-  ^' 
trine  to  hamper  and  impede  an  ordinary  business  transaction. 
I  cannot  bring  myself  to  agree  that,  either  by  virtue  of  the  Judi- 
cature Act  or  otherwise,  business  transactions  are  to  be  ham- 
pered by  any  doctrine  which  will  prevent  a  man  from  doing 
what  he  otherwise  might  do,  merely  because  something  has 
.  happened  between  other  parties.  I  would  therefore  confine 
this  remedy  to  a  case  where  a  debt  has  actually  accrued  due 
from  one  person  to  another,  or  at  least  I  certainly  would  confine 
it  simply  to  the  case  where  nothing  remains  to  be  done  by  the 
person  who  is  the  assignor.  In  that  case  nothing  remains  to  be 
done  by  him  but  to  receive  money  from  the  person  who  is  to 
pay  him,  and  that  mone}^  he  makes  over  to  the  equitable  as- 
signee. But  I  cannot  bring  my  mind  to  think  that  this  doctrine 
should  be  extended,  so  as  to  prevent  the  parties  to  an  unfulfilled 
contract  from  either  cancelling  or  modifying,  or  dealing  with 
regard  to  it  in  the  ordinary  course  of  business.  I  quite  agree 
that  they  ought  not  to  be  allowed  to  act  mala  fide  for  the  pur- 
pose of  defeating  an  equitable  assignee  ;  but  if  what  they  do  is 
done  bona  fide  and  in  the  ordinary  course  of  business,  I  cannot 
think  their  dealings  ought  to  be  impeded  or  imperilled  by  this 
doctrine,  and  it  seems  to  me  the  purchaser  of  a  ship  and  the 
builder  might  have  cancelled  the  contract  even  after  this  assign- 
ment. Why  may  they  not  modify  it  ?  If  they  cannot  modify 
it,  it  seems  to  me  to  denote  a  state  of  slavery  in  business  that 
ought  not  to  be  suffered  ;  but  I  apprehend  the  parties  to  the 
contract  can  modify  it.  If  they  can  modify  it,  why  may  they 
not  act  so  that  no  money  shall  be  due  from  the  defendant  in 
this  case  to  the  plaintiff  ?  It  seems  to  me  there  never  was  any 
money  due  to  the  assignor  of  the  plaintiff.  Before  that  money 
became  due,  it  was  absorbed  either  by  an  advance  made  bona 
fide  by  the  present  defendant  to  the  builder,  or  by  a  modifica- 
tion of  the  contract.  The  builder  never  could  have  sued  this 
defendant  for  money  due  to  him  as  for  a  debt  ;  and  therefore 
it  seems  to  me  no  equitable  assignment  ought  to  be  allowed  to 
charge  the  defendant  and  make  him  practically  pay  twice  over. 
In  what  cases  has  this  equitable  doctrine  been  applied  ?     Sup- 


1 


SEC.  II.]  BRICE   V.    BANNISTER,  Q15 

pose  a  man  writes  upon  paper,  "  I  promise  to  pay  A.  B.  the 
sum  of  ;/^ioo  on  demand  :"  the  document,  not  being  paj'able 
to  bearer  or  to  order,  is  not  a  promissory  note,  assignable  or 
negotiable  by  statute  or  the  law  merchant.  Has  any  Court  of 
Equity  ever  held,  that  if  a  person  received  sucli  a  paper  it  could 
be  sued  upon  after  being  handed  over  to  a  third  person  ?  But 
this  equitable  doctrine  would  make  a  promissory  note  not 
payable  to  bearer  an  order  transferable  to  a  third  party,  with- 
out any  writing  upon  it,  and  I  apprehend  that  is  directly  con- 
trary to  all  practice,  custom,  and  law,  and  shows  that  this  doc- 
trine is  not  to  be  allowed  to  control  or  hamper  ordinary 
business  transactions. 

I  am,  therefore,  of  opinion  in  this  case  the  doctrine  ought 
not  to  be  allowed  to  hamper  and  impede  the  ordinarj'  transac- 
tions which  occurred  between  the  defendant  and  the  builder. 
The  defendant  had  a  right,  with  the  consent  of  the  builder,  to 
modify  this  contract,  and  he  modified  it  so  far  and  to  such  a 
degree  that  no  money  was  ever  due  from  the  defendant  to  the 
builder,  and  therefore  the  equitable  assignment  by  the  builder 
to  the  plaintiff  had  no  legal  or  binding  effect  whatever.  There- 
fore I  am  of  opinion  that  the  defendant  in  this  case  is  entitled 
to  succeed. 

Bramwell,  L.J.  I  have  reluctantly  come  to  the  conclusion 
that  this  judgment  should  be  affirmed.  I  say  reluctantly,  be- 
cause I  feel  the  great  force  of  my  brother  Brett's  observations  ; 
it  does  seem  to  me  a  strange  thing  and  hard  on  a  man,  that  he 
should  enter  into  a  contract  with  another  and  then  find  that 
because  that  other  has  entered  into  some  contract  with  a  third, 
he,  the  first  man,  is  unable  to  do  that  which  it  is  reasonable  and 
just  he  should  do  for  his  own  good.  But  the  law  seems  to  be 
so  ;  and  any  one  who  enters  into  a  contract  with  A.  must  do  so 
with  the  understanding  that  B.  may  be  the  person  with  whom 
he  will  have  to  reckon.  Whether  this  can  be  avoided,  I  know 
not  ;  maybe,  if  in  the  contract  with  A.  it  was  expressly  stipu- 
lated that  an  assignment  to  B.  should  give  no  rights  to  him, 
such  a  stipulation  would  be  binding.  I  hope  it  v.'^ould  be.  But 
as  there  is  no  such  clause  in  the  contract  here,  the  plaintiff  has 
undoubtedly  certain  rights — to  what  ?  If  it  were  only  to  money 
payable  according  to  the  terms  of  the  contract,  the  plaintiff 
would  fail,  for  no  money  ever  became  due  according  to  the 
terms  of  the  contract.  It  was  paid  in  advance  before  the  work 
was  finished  ;  so  that  an  amendment  of  the  statement  of  claim 
is  necessary  ;  and  in  strictness  the  plaintiff's  case  is  this  : 
"  You,  the  defendant,  had  no  right  to  pay  in  advance  ;  you 
were  bound  to  wait  till  the  work  was  finished  ;  vou  would  then 


pi 6  HEERMANS   V.    ELLSWORTH.  [CHAP.  III. 

owe  Gough  money,  and  would  then  be  bound  to  pay  me." 
This  seems  to  be  the  law,  and  certainly  if  Gough  and  the  de- 
fendant had  agreed  to  anticipate  the  time  of  payment  to  defeat 
the  plaintiff,  such  a  scheme  ought  not  to  succeed.  On  the 
other  hand,  if  Gough  had  broken  his  engagement,  or  threatened 
to  break  his  engagement  to  finish  the  vessel,  or  to  finish  it  in  a 
reasonable  time,  and  the  defendant  to  remedy  and  avert  such 
breach,  reasonably  and  bona  Jide,  not  to  defeat  the  plaintiff  but 
to  protect  himself,  advanced  money  to  Gough  before  it  was 
due,  so  that  it  never  became  due  according  to  the  contract,  I 
should  have  hesitated  long  before  holding  that  the  defendant 
was  liable  in  this  action.  But  in  reading  the  correspondence  I 
cannot  see  that  this  was  the  case.  That  the  defendant  acted 
bona  fide  I  doubt  not,  but  I  think  his  advancing  of  the  money  as 
he  did  was  quite  voluntary  and  in  no  sense  compulsory.  I  con- 
cur, therefore,  in  affirming  the  judgment. 
Judgment  affirmed. 


JOHN    HEERMANS,    Trustee,  etc.,  Appellant,  v. 
S.   STEWART  ELLSWORTH,  Respondent. 

In  the  Court  of  Appeals  of  New  York,  February  8,  1876. 

{Reported  in  64  New  York  Reports  159. J 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department  affirming  a  judgment 
in  favor  of  plaintiff,  entered  upon  a  verdict.  (Reported  below. 
5  T.  &  C,  605  ;  3  Hun,  473.) 

This  action  was  brought  by  plaintiff  as  trustee  claiming  under 
a  deed  in  trust  executed  by  one  Joseph  Fellows  of  his  property, 
real  and  personal,  to  recover  a  balance  of  account  for  moneys 
loaned  by  said  Fellows  to  defendant. 

The  defence  was  payment,  and  defendant  proved  payment  to 
Fellows  after  the  execution  of  the  trust  deed.  Prior  to  the 
payment  an  action  was  brought  by  Fellows  against  plaintiff  to 
revoke  the  trust  deed.  Defendant  was  subpoenaed  and  exam- 
ined as  a  witness  therein.  Other  evidence  on  plaintiff's  part 
tended  to  show  notice.  Defendant  testified  that  at  the  time  of 
the  payment  he  had  no  knowledge  or  notice  of  the  trust  deed. 

Upon  the  question  of  notice  the  Court  charged  as  follows  : 
"  The  burden  of  proof  is  upon  the  plaintiff  upon  this  question, 
and  it  is  incumbent  upon  him  to  establish  the  fact  of  notice  by 
a  fair  preponderance  of  evidence.  If  the  testimony  is  simply 
balanced,  the  defendant  is  to  prevail."     To  which  charge  plain- 


SEC.  II.]  HEERMANS   V.    ELLSWORTH.  917 

tiff's  counsel  duly  excepted.  Said  counsel  requested  the  Court 
to  charge  that  the  burden  of  proof  was  upon  the  defendant,  tu 
show  that  the  payment  was  made  without  notice  and  in  go(j<l 
faith.  The  Court  refused  so  to  charge,  and  the  plaintiff's  coun- 
sel duly  excepted.  Said  counsel  also  asked  the  Court  to  charge 
that  the  pendency  of  the  action  between  Fellows  and  plaintiff 
was  constructive  notice  to  the  defendant  and  conclusive  upon 
him  in  this  action.  The  Court  refused  so  to  charge,  and  said 
counsel  duly  excepted. 

A.  Hadden  for  the  appellant. 

Geo.  B.  Bradley  for  the  respondent. 

Miller,  J.  There  was  no  error  in  the  charge  of  the  judge 
upon  the  trial,  that  the  burden  of  proof  was  upon  the  plaintiff, 
upon  the  question  of  notice,  and  that  it  was  incumbent  upon 
him  to  establish  the  fact  of  notice  ;  nor  in  the  refusal  to  charge 
that  the  burden  of  proof  was  upon  the  defendant  to  show  that 
the  payment  was  made  without  notice  and  in  good  faith.  The 
debt  was  due  to  Fellows,  and  he  being  the  creditor,  it  is  a  fair 
legal  presumption  that  such  creditor  was  lawfully  entitled  to 
receive  payment.  If  an  assignment  was  made  by  Fellows  to 
the  plaintiff,  it  was  the  duty  of  the  assignee  to  establish  that  the 
debtor  was  notified  in  order  to  protect  himself  against  any  pay- 
ment to  the  original  creditor.  This  rule  is  fully  established  by 
authority.  See  Meghan  v.  Mills,  9  J.  R.,  64  ;  Anderson  v.  Van 
Allen,  12  J.  R.,  343  ;  Briggs  v.  Dorr,  19  J.  R.,  95  ;  Say  v.  Das- 
comb,  I  Hill,  552  ;  Field  v.  The  Mayor,  2  Seld.,  179.  At  com- 
mon law  an  action  to  recover  upon  an  instrument  not  negotiable, 
was  necessarily  brought  in  the  name  of  the  original  owner  or 
payee,  and  if  payment  was  pleaded  it  was  not  enough  that  the 
replication  denied  the  payment,  without  averring  both  the 
assignment  and  notice  of  the  transfer  before  pa3'ment.  19  J.  R., 
95  ;  I  Hill,  supra.  Unless  this  was  done  the  pleading  was  in- 
sufficient, and  the  proof  could  not  be  given. 

Proof  of  payment  to  the  creditor  establishes  a  complete 
defence,  and  when  this  is  made  out  it  belongs  to  the  other  side 
to  answer  or  avoid  it  by  evidence  of  the  assignment  of  the  de- 
mand and  notice  thereof  to  the  debtor.  As  he  alleges  that  the 
payment  was  not  made  to  the  proper  person  he  is  bound  to 
establish  it.  It  is  entirely  evident  that  the  onus  is  upon  him, 
and  he  has  the  affirmative  upon  such  an  issue.  Hollister  v. 
Bender,  i  Hill,  150,  is  not  in  conflict  with  the  rule  stated.  As 
there  said,  the  substance  of  the  allegation  to  be  tried  determines 
where  the  onus  lies,  and  as  the  assignment  and  notice  were  the 
very  essence  of  the  plaintiff's  right  to  recover,  the  burden  was 
upon  him.     There  is  no  principle  of  pleading  which  can  distur  j 


giS  MILLER   &   REIST  v.    KREITER.  [CHAP.  Ill, 

or  alter  the  rule  laid  down.  Nor  is  there  any  ground  for  claim- 
ing that  the  necessity  for  such  a  rule  no  longer  exists,  since 
parties  are  allowed  to  be  witnesses  on  their  own  behalf.  This 
furnishes  no  sufficient  or  satisfactory  reason  for  changing  a  rule 
of  evidence  long  established,  and  which  is  founded  upon  a  settled 
principle. 

The  remarks  of  the  learned  judge  who  wrote  the  opinion  in 
Bush  V.  Lathrop,  22  N.  Y.,  535,  have  no  direct  bearing  upon  the 
question  considered,  as  that  case  is  not  analogous. 

Nor  was  there  any  error  in  the  refusal  to  charge  the  jury  that 
the  pendency  of  the  action  between  Fellows  and  Heermans  was 
constructive  notice  to  the  defendant  of  the  existence  of  the 
deed.  It  is  not  claimed  that  it  operated  as  a  notice  of  /is 
pende?is  strictly,  and  whether  the  defendant  had  notice  of  the 
character  of  the  action  so  as  to  put  him  on  inquiry,  from  the 
fact  of  his  being  sworn  as  a  witness  in  the  case,  or  from  any 
other  circumstances,  was  a  question  of  fact  for  the  jury  to 
determine.  The  discussion  already  had  disposes  of  the  case, 
and  no  other  question  is  presented  which  demands  comment. 

The  judgment  was  right  and  should  be  affirmed. 

All  concur. 

Judgment  affirmed. 


MILLER  &   REIST  v.  KREITER  to  the  use  of 
BOMBERGER. 

In  the  Supreme  Court  of  Pennsylvania,  May  5,  1874. 

[Reported  in  76  Pejinsylvania  State  Reports  78.] 

Before  Agnew,  C.J.,  Sharswood,  Williams,  Mercur,  and 
Gordon,  JJ. 

Error  to  the  Court  of  Common  Pleas  of  Lancaster  County  : 
Of  May  Term  1874,  No.  19. 

This  was  an  action  of  assumpsit^  brought  January  25th,  1872, 
by  C.  W.  Kreiter  to  the  use  of  Isaac  F.  Bomberger,  against 
S.  C.  Miller  and  A.  H.  Reist,  on  a  joint  and  several  non- 
negotiable  note,  dated  January  9th,  187 1,  payable  to  Kreiter  in 
one  year  for  $2000.  The  defendants  pleaded  payment  with 
leave,  etc.,  and  set-off. 

The  defendants  and  Kreiter  had  been  in  business  together  as 
partners,  and,  on  arranging  their  business,  this  note  was  given 
by  the  defendants  to  Kreiter  for  his  interest  in  the  firm.  It 
was  agreed  at  the  same  time  that  notes  in  the  Inland  Insurance 


SEC.  II.]  MILLER   &   REIST   V.    KREITER.  919 

Company  or  any  other  institution  which  Kreiter  had  drawn  in 
the  name  of  the  firm  and  used  the  money  himself,  should  be  set 
off  against  this  note  which  was  drawn  non-negotiable  to  enable 
the  set-off  to  be  made.  Kreiter  assigned  this  note  to  Bomber- 
ger,  the  use-plaintiff,  by  the  following  endorsement  on  it  : 

*'  I  hereby  transfer  my  light,  title,  and  claim  to  the  within 
note  to  I.  F.  Bomberger,  for  the  consideration  as  collateral 
security,  for  endorsing  me  on  a  note  discounted  in  the  Litiz 
Deposit  Bank.  C.  W.  Kreiter." 

The  set-off  above  mentioned  was  conceded  on  the  trial,  and 
there  then  remained  $675.34  due  on  the  $2000  note. 

To  this  balance  the  defendants  claimed  to  make  a  further  set- 
off arising  from  the  following  note  : 

"  Lancaster,  April  8th,  1871. 

"  Sixty  days  after  date,  I  promise  to  pay  to  the  order  of  John 
S.  Hostetter,  thirteen  hundred  dollars,  at  the  First  National 
Bank  of  Lancaster,  without  defalcation,  for  value  received. 

C.  W.  Kreiter. 

"  Credit  the  drawer,  ) 

"  John  S.  Hostetter.  ) 

"  Endorsed — John  S.  Hostetter,  A.  H.  Reist." 

Protested  for  non-payment,  June  loth,  1871. 

This  note  passed  into  the  hands  of  A.  S.  Bard,  who  brought 
suits  on  it  against  Kreiter,  Hostetter  and  Reist  ;  and  on  April 
6th,  1872,  recovered  judgment  in  each  suit  for  $1366.46.  Reist 
paid  the  amount  of  this  judgment.  The  judgments  against 
Kreiter  and  Hostetter  were  assigned  to  him  May  20th,  1873, 
and  that  against  himself  marked  satisfied. 

On  the  trial,  August  30th,  1873,  before  Hayes,  J.,  the  fore- 
going facts  appeared  in  evidence.  Isaac  F.  Bomberger  testified 
also  :  "  I  had  been  endorser  for  C.  W.  Kreiter  on  two  notes — 
one  for  $1500,  and  one  for  $2000,  and  also  guaranteed  a  check 
for  $850.  I  refused  to  endorse  any  longer  unless  he  would  give 
me  some  collateral  security  ;  he  was  then  solvent  ;  had  real  and 
personal  property  ;  he  may  have  been  insolvent,  but  he  owned 
a  good  deal  of  property  ;  he  was  not  sold  out  ;  he  came  to  me 
with  this  note  signed  by  A.  H.  Reist  and  S.  C.  Miller  ;  repre- 
sented, or  said  this  note  represented,  his  interest  in  a  liquor 
store  in  Lancaster,  of  which  he  was  a  partner  with  Miller  & 
Reist  ;  said  he  was  still  a  partner,  and  the  word  order  was  left 
out  because  he  was  a  silent  partner.  I  paid  nothing  additional, 
but  I  guaranteed  a  check  at  the  time  this  note  of  Miller  &  Reist 
was  transferred  to  me.  This  transfer  was  written  at  the  time 
the  note  was  given  to  me." 


C)20  '     MILLER   &   REIST   V.   KREITER.  [CHAP.  III. 

The. Court,  after  stating  the  facts,  charged  :  .   .   . 

"  The  difficulty  depends  upon  the  claim  of  set-off  in  relation 
to  the  debt  due  from  C.  VV.  Kreiter  to  A.  H.  Reist,  which  the 
defendants  claim  to  set  off  in  this  action,  together  with  the 
notes  paid  to  the  Inland  Insurance  and  Deposit  Company. 
With  respect  to  the  latter  there  is  no  longer  any  dispute,  it 
being  conceded  that  the  defendants  are  entitled  to  set  off  them  ; 
but  it  is  objected  to  the  note  left  for  collection  with  the  First 
National  Bank,  and  which  A,  H.  Reist,  being  an  endorser,  has 
paid  for  C.  W.  Kreiter,  that  it  cannot  be  a  proper  subject  of 
set-off  in  this  case,  which  is  a  suit  against  two  defendants,  and 
the  other  was  in  no  way  responsible  for  this  note,  and  the  debt 
due  from  the  plaintiff  on  that  account  is  to  the  other  defendant. 
[A  set-off  in  general  cannot  be  claimed  by  one  of  two  or  more 
defendants  in  the  same  suit  for  a  debt  due  to  one  only,  which, 
being  this  case,  defeats  the  claim  as  to  this  note,  if  there  be 
nothing  to  make  it  an  exception  to  the  rule — some  superior 
equity  in  A.  H.  Reist's  claim  over  and  above  that  of  Isaac  F. 
Bomberger.]  [Again,  the  set-off  must  depend  upon  the  condi- 
tion of  the  claim  at  the  time  of  the  suit  brought  ;  it  must  have 
existed  at  that  time.  In  this  case  A.  H.  Reist  had  not  paid  this 
note  when  the  present  suit  was  brought,  but  paid  it  more  than 
a  year  afterward.] 

"  I  am,  therefore,  of  opinion,  that  [unless  the  jury  believe, 
on  a  review  of  the  transactions  of  these  parties,  that  the  de- 
fendant, A.  H.  Reist,  has  some  equity  superior  to  that  of  Isaac 
F.  Bomberger,  the  real  plaintiff,  his  claim  to  set  off  the  note  left 
with  the  First  National  Bank  cannot  be  maintained,  more 
especially  as  he  acquired  the  claim  long  after  this  suit  was 
brought."] 

The  verdict  was  for  the  plaintiff  for  $675.34. 

The  defendants  took  a  writ  of  error,  and  assigned  for  error 
the  parts  of  the  charge  in  brackets. 

T.  E.  Franklin  (with  whom  was  N.  Ellmaker)  for  plaintiffs 
in  error. 

D.  McMidlen  for  defendant  in  error. 

Gordon,  J.,  delivered  the  opinion  of  the  Court,  May  25th,  1874. 

Reist,  the  defendant,  by  his  endorsement  of  the  note  drawn 
by  Kreiter  to  Hostetter,  became  surety  for  Kreiter.  Hence,  as 
soon  as  the  note  was  protested,  June  loth,  187 1,  and  Reist's 
liability  as  endorser  became  fixed  and  absolute,  he  was  entitled 
to  call  upon  the  maker  to  exonerate  him  from  such  liability, 
and  that  even  before  demand  was  made  upon  him  for  payment. 
Beaver  v.  Beaver,  11  Harris,  167.  His  right  of  set-off,  as  against 
any  claim  Kreiter  had  against  him,  may  be  said  to  have  origi- 


SEC.  II.]  GOSHEN  NAT.  BANK  V.  BINGHAM  r/  a/.  92I 

nated  from  this  period.  When,  therefore,  he  paid  the  note  on 
which  he  was  endorser,  May  20th,  1S73,  he  was,  by  force  of  his 
equitable  status,  put  in  the  same  position  as  if  he  had  paid  it  at 
the  time  of  protest.  Again,  as  there  is  no  evidence  of  the 
date  of  the  assignment  to  Bomberger  of  the  non  negotiable 
note  drawn  by  Miller  &  Reist,  on  which  this  suit  is  founded, 
and  as  Reist  had  no  notice  thereof  previously  to  the  service  of 
the  summons,  January  25th,  1872,  as  against  him,  it  could  be 
effective  only  from  that  date  ;  for  the  rule  is,  that  the  period 
from  which  to  determine  the  rights  of  the  assignee  and  defend- 
ant is  not  the  date  of  the  assignment,  but  the  time  when  the 
latter  had  notice,  Northampton  v.  Balliet,  8  W.  &  S.,  311.  It 
follows,  therefore,  that  Reist's  equitable  set-off  having  arisen 
before  the  assignment  to  Bomberger,  he  had  the  right  to  defalk 
his  claim  against  the  note  in  suit,  and  the  Court  should  so  have 
ruled. 

The  counsel  for  the  defendant  in  error  is  mistaken  in  the  sup- 
position that  one  of  two  or  more  defendants  may  not  set  off  his 
individual  claim  against  the  joint  claim  of  the  plaintiff.  The 
converse  of  this  is  held  in  Childerston  v.  Hammon,  9  S.  &  R.  67, 
and  Archer  v.  Dunn,  2  W.  &  S.  361. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 


THE    GOSHEN    NATIONAL    BANK  v.  WILLIAM    BING- 
HAM   ET    AL. 

WILLIAM  BINGHAM  et  al.  v.  THE    GOSHEN 
NATIONAL  BANK. 

In  the  Court  of  Appeals  of  New  York,  January   14,  1890. 
[Reported  m  118  New  York  Reports  349.] 

Appeals  from  judgments  rendered  by  the  General  Term  of 
the  Supreme  Court  in  the  first  judicial  department,  entered 
upon  orders  made  March  31st,  1887,  which  affirmed  a  judgment 
in  the  action  first  above  entitled  in  favor  of  defendants  and  a 
judgment  in  action  second  above  entitled  in  favor  of  plaintiffs, 
both  of  which  were  entered  upon  the  reports  of  a  referee. 

On  November  27th,  1884,  Benjamin  D.  Brown  applied  to  the 
cashier  of  the  Goshen  National  Bank,  appellant,  at  Goshen,  N.  Y., 
to  cash  a  sight  draft  for  $17,000,  drawn  by  him  upon  the  firm  of 
William  Bingham  &  Co.,  of  New  York,  the  individual  members 
of  which  firm  are  the  respondents,  accompanied  by  a  quantity  of 
the  bonds  of  the  West  Point  Manufacturing  Company,  of  the 


022  GOSHEN  NAT.  BANK  V.  BINGHAM  cf  al.       [cHAP.  III. 

face  value  of  $17,000.  Brown  represented  that  he  had  nego- 
tiated a  saie  of  these  bonds  at  their  face  value  with  William 
Bingham  &  Co.  ;  that  they  had  directed  him  to  draw  upon  them 
at  sight  for  $17,000,  the  draft  to  be  accompanied  by  the  bonds, 
and  that  the  draft  would  be  paid  upon  presentation.  Such 
representations  were  absolutely  false.  The  bonds  had  no 
market  value.  Brown  was  a  bankrupt  and  had  no  funds  in  the 
bank  except  such  as  resulted  from  the  credit  given  him  upon 
the  faith  of  the  draft  on  Bingham  &  Co.,  accompanied  by  the 
bonds.  The  cashier  of  the  Goshen  National  Bank,  relying 
upon  such  representations,  cashed  the  draft  of  $17,000,  and 
placed  the  proceeds  to  the  credit  of  Brown  upon  the  books  of 
the  bank.  He  gave  Brown  sight  drafts  on  New  York  for 
$12,000,  and  certified  a  check  drawn  by  Brown  to  his  own  order, 
dated  November  26th,  1884,  for  $5000.  On  the  morning  of 
November  28th,  Brown  called  at  the  office  of  William  Bingham 
&  Co.,  and  stated  that  he  wanted  to  get  some  currency.  Mr. 
Bingham  passed  the  check  to  the  firm's  cashier  directing  him 
to  give  Brown  currency  for  the  amount.  The  cashier  gave  him 
a  check  drawn  on  the  Corn  Exchange  Bank  for  $5000.  Brown 
had  the  check  cashed  at  the  Corn  Exchange  Bank.  He  also  had 
the  New  York  drafts  cashed,  amounting  to  $12,000,  which  he 
had  obtained  from  the  Goshen  National  Bank.  After  procur- 
ing the  checks  and  drafts  to  be  cashed,  he  fled  to  Canada,  where 
he  remained  at  the  time  of  the  trial  of  these  actions.  When 
Bingham  &  Co.  took  from  Brown  the  check  certified  by  the 
Goshen  National  Bank  it  was  not  endorsed. 

The  referee  found  in  the  action  second  entitled  that  "  at  the 
time  of  the  transfer  of  the  said  certified  check  by  Brown  to  the 
plaintiffs,  it  was  intended  both  by  Brown  and  the  plaintiffs  that 
said  certified  check  should  be  endorsed  by  Brown,  and  it  was 
supposed  by  both  parties  that  he  had  so  endorsed  it,  and  if  the 
plaintiff  had  known  that  it  was  not  endorsed  they  would  not 
have  paid  the  consideration  therefor." 

He  found,  in  the  action  second  entitled,  "  that  Brown  made 
no  statement  to  the  defendants,  or  either  of  them,  at  the  time 
of  the  transfer  of  the  check  that  such  check  was  endorsed." 

And  "  prior  to  the  commencement  of  the  action  of  replevin 
the  defendants  never  requested  Brown  to  endorse  said  check." 

While  Bingham  &  Co.  held  the  check  in  question  unendorsed, 
a  demand  for  its  return  to  the  bank,  accompanied  by  a, full  ex- 
planation of  the  circumstances  under  which  the  certification 
was  obtained,  was  made  upon  Bingham  &  Co.,  in  behalf  of  the 
bank,  and  upon  their  refusal  to  return  it,  an  action  to  recover 
its  possession  was  commenced  by  the  bank  against  Bingham  &  Co. 


SEC,  II.]  GOSHEN  NAT.  BANK  V.  BINGHAM  ft  al.  923 

That  action  is,  firstly,  above  entitled. 

Subsequently,  and  on  December  i6th,  Bingham  &  Co. 
obtained  from  Brown  a  power  of  attorney  to  endorse  the  check. 
Pursuant  thereto  the  check  was  endorsed  and  payment  there- 
after demanded  of  the  bank. 

This  was  refused,  and  thereupon  the  action,  secondly,  above 
entitled,  was  commenced  by  Bingham  &  Co.,  to  recover  the 
amount  of  the  check. 

Henry  Bacon  for  appellant. 

Joseph  F.  Mosher  for  respondents. 

Parker,  J.  As  against  Brown,  to  whose  order  the  check 
was  payable,  the  bank  had  a  good  defence.  But  it  could  not 
defeat  a  recovery  by  a  bona  fide  holder  to  whom  the  check  had 
been  endorsed  for  value.  By  an  oversight  on  the  part  of  both 
Brown  and  Bingham  &  Co.  the  check  was  accepted  and  cashed 
without  the  endorsement  of  the  payee.  Before  the  authority  to 
endorse  the  name  of  the  payee  upon  the  check  was  procured 
and  its  subsequent  endorsement  thereon,  Bingham  &  Co.  had 
notice  of  the  fraud  which  constituted  a  defence  for  the  bank  as 
against  Brown.     Can  the  recovery  had  be  sustained  ? 

It  is  too  well  settled  by  authority,  both  in  England  and  in 
this  country,  to  permit  of  questioning,  that  the  purchaser  of  a 
draft,  or  check,  who  obtains  title  without  an  endorsement  by  1 
the  payee,  holds  it  subject  to  all  equities  and  defences  existing  ; 
between  the  original  parties,  even  though  he  has  paid  full  con-  ; 
sideration,  without  notice  of  the  existence  of  such  equities  and 
defences.  Harrop  v.  Fisher,  30  L.  J.  (C.  L.,  N.  S.),  2S3  ; 
Whistler  v.  Forster,  14  C.  B.  (N.  S.)  246  ;  Savage  v.  King,  17 
Me.  301  ;  Clark  v.  Callison,  7  111.  263  ;  Haskell  v.  Mitchell,  53 
Me.  468  ;  Clark  v.  Whitaker,  50  N.  H.  474  ;  Calder  v.  Billing- 
ton,  15  Me.  398  ;  Lancaster  Nat.  Bank  v.  Taylor,  100  Mass.  18  ; 
Gilbert  v.  Sharp,  2  Lans.  412  ;  Hedges  v.  Sealy,  9  Barb.  214- 
218  ;  Franklin  Bank  v.  Raymond,  3  Wend.  69  ;  Raynor  v. 
Hoagland,  7  J.  &  S.  11  ;  MuUer  v.  Pondir,  55  N.  Y.  325  ; 
Freund  v.  Importers'  &  Traders'  Bank,  76  N.  Y.  352  ;  Trust  Co. 
V.  Nat.  Bank,  loi  U.  S.  68  ;  Osgood  v.  Artt,  17  Fed.  Rep.  575. 

The  reasoning  on  which  this  doctrine  is  founded  may  be 
briefly  stated  as  follows  :  The  general  rule  is  that  no  one  can 
transfer  a  better  title  than  he  possesses.  An  exception  arises 
out  of  the  rule  of  the  law  merchant,  as  to  negotiable  instru- 
ments. It  is  founded  on  the  commercial  policy  of  sustaining 
the  credit  of  commercial  paper.  Being  treated  as  currency  in 
commercial  transactions,  such  instruments  are  subject  to  the 
sam^e  rule  as  money.  If  transferred  by  endorsement,  for  value, 
in  good  faith  and  before  maturity,  they  become  available  in  the 


924  HOWELL    Ct  al.    V.    MacIVERS   ct  al.  [CHAP.  III. 

hands  of  the  holder,  notwithstanding  the  existence  of  equities 
and  defences,  which  would  have  rendered  them  unavailable  in 
the  hands  of  a  prior  holder. 

This  rule  is  only  applicable  to  negotiable  instruments  which 
are  negotiated  according  to  the  law  merchant. 

When,  as  in  this  case,  such  an  instrument  is  transferred  but 
without  an  endorsement,  it  is  treated  as  a  chose  in  action 
assigned  to  the  purchaser.  The  assignee  acquires  all  the  titlei 
of  the  assignor,  and  may  maintain  an  action  thereon  in  his  own 
name.  And,  like  other  choses  in  action,  it  is  subject  to  all  the 
equities  and  defences  existing  in  favor  of  the  maker  or  acceptor 
against  the  previous  holder.* 

All  concur,  except  Haight,  J.,  not  sitting. 

Judgments  accordingly. 


HOWELL  AND  Others  v.  MacIVERS  and  Others. 

In  the  King's  Bench,  May  19,  1792. 

[Reported  m  4  Term  Reports  690.] 

Assumpsit  on  a  contract  by  three.  Plea,  the  bankruptcy  of 
one  of  them  before  the  action  brought.  Replication  that  before 
his  bankruptcy  he  assigned  his  interest  in  the  contract  of  the 
other  two.  To  which  there  was  a  general  demurrer,  in  support 
of  which 

Russell  contended  that  the  replication  should  have  stated  how 
the  assignment  was  made,  by  what  deed,  so  that  the  defendant 
might  have  craved  oyer  of  it.  In  Winch  v.  Keeley^  the  assign- 
ment was  by  deed  which  was  set  out,  and  therefore  this  objec- 
tion did  not  occur,  though  the  Court  there  held  that  the  interest 
which  the  bankrupt  had  assigned  before  his  bankruptcy  did  not 
pass  to  his  assignees  under  the  commission. 

Wood,  contra.  It  is  not  necessary  that  an  assignment  of  a 
chose  in  action  should  be  by  deed,  and  therefore  it  is  no  ground 
of  demurrer  that  it  is  not  so  stated. 

The  Court  were  of  the  same  opinion,  but  they  gave  leave  to 
the  defendant  to  withdraw  the  demurrer  and  take  issue  on  the 
assignment. 

1  Only  so  much  of  the  opinion  is  given  as  relates  to  this  question. — Ea 

2  I  T.  R.  619. 


SEC.  II.]  RISLEY   V.    THE   PHENIX   BANK   OF   N.  Y.  935 


DAVID    RISLEY,    Respondent,    7:    THE    PHENIX    BANK 
OF    THE    CITY    OF    NEW    YORK,   Appellant. 

In  the  Court  of  Appeals  of  New  York,   January   18,  1881. 

\^Reporied  ill  83  Neiu  York  Reports  31 8.  J 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court,  in  the  first  judicial  department,  entered  upon  an  order 
made  November  6th,  1879,  affirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict,  and  affirming  an  order  denying 
a  motion  for  a  new  trial. 

The  amended  complaint  in  this  action  contained  three  counts, 
the  first  two  set  forth  a  check,  dated  May  20th,  1861,  drawn  by 
the  Bank  of  Georgetown,  S.  C,  upon  defendant,  payable  to 
the  order  of  plaintiff,  for  $10,000,  alleged  to  have  been  deliv- 
ered to  plaintiff  by  the  drawer  for  a  good  and  valuable  consid- 
eration, and  to  have  been  drawn  against  a  deposit  with  defend- 
ant, largely  exceeding  that  amount  to  the  credit  of  the  drawer. 
The  third  count  alleged  an  indebtedness  of  defendant  to  said 
Bank  of  Georgetown  to  the  amount  of  $10,000,  an  assignment 
on  the  date  aforesaid  of  that  amount  of  said  indebtedness  to 
plaintiff,  a  demand  and  refusal  to  pay. 

The  answer  admitted  that  at  the  date  of  the  check,  and  up  to 
January  5th,  1865,  said  Bank  of  Georgetown  had  on  deposit 
with  it  more  than  $10,000,  and  alleged,  among  other  things, 
that  on  that  day  the  whole  amount  of  said  deposit  "  was  duly 
seized  and  attached  by  the  United  States  of  America,  and  in 
and  by  virtue  of  certain  proceedings  duly  had  in  the  District 
Court  of  the  United  States  for  the  Southern  District  of  New 
York,  said  Court  having  jurisdiction  in  the  premises,  a  moni- 
tion was  duly  issued,  and  the  same  was  duly  served  on  this 
defendant  by  the  United  States  marshal  for  the  Southern  Dis- 
trict of  New  York,  and  thereupon  such  proceedings  were  duly 
had  and  taken  in  said  Court,  in  those  proceedings  which  said 
Court  had  jurisdiction  thereof  ;  that  afterward,  and  on  or  about 
January  24th,  1865,  a  certain  decree  of  said  Court  was  duly 
given  and  made,  and  thereupon  and  on  said  day  a  duly  authenti- 
cated copy  thereof  was  duly  served  upon  this  defendant,  and 
in  pursuance  of  said  decree  on  the  said  last-named  day,  the  said 
defendant  delivered  to  the  said  marshal  .  .  .  the  whole  sum 
then  on  deposit  with  said  defendant  to  the  credit  of  said  Bank 


926  RISLEY   V.    THE    PHENIX    BANK    OF    N.  Y.     [cHAP.  III. 

of  Georgetown,  and  being  the  same  moneys  seized  and  attached 
as  aforesaid." 

The  facts  appearing  upon  the  trial  are  sufficiently  set  forth 
in  the  opinion. 

Samuel  Hand  for  appellant. 

fames  E.  Risky  for  respondent. 

Andrews,  J.  The  check  drawn  by  the  Bank  of  Georgetown 
on  the  defendant,  having  been  drawn  on  the  general  deposit  of 
r^'lthe  drawer  in  the  hands  of  the  drawee,  in  the  ordinary  form  of 
W  bank  check,  did  not,  of  itself,  operate  as  an  equitable  assign- 
ment to  the  payee  of  the  fund  to  the  amount  of  the  check.  The 
check  was  a  bill  of  exchange  within  the  statute  that  no  person 
shall  be  charged  as  an  acceptor  of  a  bill  of  exchange,  unless  his 
jacceptance  shall  be  in  writing  ;  and  the  defendant  not  having 
i'made  a  written  acceptance  of  the  check,  no  right  of  action 
*  'thereon  accrued  to  the  plaintiff  by  reason  of  the  verbal  promise 
to  pay  the  check  made  by  the  defendant  on  its  presentation, 
1  R.  S.  768,  §  6  ;  Harker  v.  Anderson,  21  Wend.  372  ;  Luff  v. 
Pope,  5  Hill,  413  ;  Chapman  v.  White,  6  N.  Y.  412  ;  Duncan  v. 
Berlin,  60  N.  Y.  153  ;  Atty.-Gen.  v.  The  Continental  Life  Ins. 
Co.,  71  N.  Y.  III. 

The  Court  on  the  trial  ruled  in  accordance  with  the  settled 
doctrine  upon  this  subject,  that  the  plaintiff  was  not  entitled  to 
recover  upon  the  cause  of  action  founded  upon  the  check  and 
the. verbal  promise  of  payment.  But  the  Court  further  ruled 
that  he  was  entitled  to  recover  upon  the  third  cause  of  action, 
which  alleged  an  assignment  of  $10,000  of  the  debt  owing  by 
the  defendant  to  the  Bank  of  Georgetown,  made  on  May  20th, 
i86i,  the  day  on  which  the  check  was  dated  and  delivered  to 
the  plaintiff,  if  the  jury  should  find  that  concurrently  with  the 
giving  of  the  check  there  was  an  oral  agreement,  for  a  valuable 
consideration  made  between  the  Bank  of  Georgetown  and  the 
plaintiff,  to  assign  to  the  latter  $10,000  of  its  debt  against  the 
Phenix  Bank.  The  Court  stated  to  the  jury  that  if  the  trans- 
action between  the  plaintiff  and  the  Bank  of  Georgetown  was 
simply  a  purchase  of  the  check  or  draft,  the  plaintiff  could  not 
maintain  the  action,  and  that  the  question  for  the  jury  to  de- 
termine was  "  whether  there  was,  independent  of  the  check,  an 
agreement  of  assignment  and  purchase  and  sale  of  $10,000  of 
the  debt  from  the  Phenix  Bank  to  the  Bank  of  Georgetown  ;" 
and  that  if  there  was  such  an  agreement,  the  plaintiff  was  en- 
titled to  recover. 

The  Phenix  Bank,  prior  to  May  20th,  1861,  was  the  corre- 
spondent in  the  city  of  New  York  of  the  Bank  of  Georgetown, 
a  banking  corporation  located  at  Georgetown,   S.  C,  and  on 


SEC.  II.]  RISLEY    V.    THE    TIIEXIX    BANK    OF    X.  V.  927 

that  date  there  was  on  its  books  a  credit  to  the  Bank  of  George- 
town to  the  amount  of  about  $18,000,  derived  from  deposits 
and  collections,  which  sum  was  then  owing  by  the  Plienix  Bank 
to  the  Bank  of  Georgetown.  The  plaintiff  was  a  resident  of 
Georgetown,  and  had  dealings  with  the  Bank  of  Georgetown. 
He  was  examined  on  the  trial,  as  a  witness  in  his  own  behalf, 
and  testified  in  substance  that  on  the  day  when  the  check  was 
dated,  the  president  of  the  bank  stated  to  him  that  the  bank 
had  a  claim  of  $17,000  or  $18,000  against  the  Phenix  Bank,  and 
offered  to  sell  it  to  the  plaintiff,  stating  as  a  reason  that  he  was 
afraid  it  might  be  lost  during  the  war,  and  that  he  was  unwill- 
ing to  carry  the  risk  ;  that  the  plaintiff  offered  to  purchase  the 
claim  at  fifty  cents  on  the  dollar,  which  offer  was  declined,  and 
the  president  then  offered  to  sell  it  for  Southern  bank  bills  at 
par  ;  that  the  plaintiff  then  offered,  if  the  bank  would  divide 
the  claim,  to  purchase  $10,000  of  it,  upon  the  terms  proposed, 
which  offer  was  accepted,  and  the  plaintiff  thereupon  paid  the 
$10,000  ;  that  a  question  arose  as  to  what  kind  of  a  transfer 
should  be  given,  and  the  president  of  the  bank  said  he  would 
give  the  plaintiff  an  order  on  the  Phenix  Bank  for  the  amount, 
and  thereupon  gave  the  plaintiff  the  check  before  referred  to, 
and  this  completed  the  transaction  between  the  plaintiff  and 
the  Bank  of  Georgetown. 

The  check  was  not  presented  to  the  Phenix  Bank  for  payment 
until  January  4th,  1865.  The  plaintiff  testifies  that  on  that  day 
he  presented  the  check  at  the  bank  to  the  president,  and  told 
him  he  had  called  to  collect  it  ;  that  the  president,  after  look- 
ing at  the  check,  said  it  was  good,  and  that  it  would  be  paid  on 
presentation  by  some  person  known  to  the  bank  ;  that  he  there- 
upon stated  to  the  defendant's  president  that  the  Bank  of 
Georgetown  had  transferred  to  him  so  much  of  its  claim  against 
the  defendant  as  was  represented  by  the  check.  The  next  day 
the  check  was  again  presented  by  a  person  known  to  the  de- 
fendant, and  the  bank  then  refused  payment,  on  the  ground 
that  the  debt  had,  on  the  morning  of  that  day,  been  seized  by 
the  United  States,  as  forfeited  under  the  confiscation  acts  of 
Congress.  The  amount  standing  to  the  credit  of  the  Bank  of 
Georgetown,  on  the  books  of  the  Phenix  Bank  January  4th, 
1865,  was  $12,117.38.  The  credit  existing  May  20th,  1861,  had 
been  reduced  by  checks  charged  against  the  account,  drawn  by 
the  Bank  of  Georgetown,  after  that  date,  and  paid  by  the 
Phenix  Bank  ;  but  no  new  deposit  had  been  made,  and  the 
Phenix  Bank  had  no  lien  upon  or  relation  to  the  fund  remain- 
ing in  its  hands  January  4th,  1865,  except  as  simple  depositary 
of  the  Bank  of  Georgetown.     The  defendant  denied  in  its  an- 


928  RISLEY   Z'.  THE    PHENIX   BANK   OF   N.  Y.     [chap.  III. 

swer  the  assignment  alleged  in  the  complaint,  and  sought  to 
discredit  the  plaintiff's  testimony  in  respect  to  the  purchase 
from  the  Bank  of  Georgetown,  by  introducing  his  testimony  on 
a  former  trial,  in  which  he  made  no  allusion  to  the  negotiation 
for  the  purchase  of  the  claim  to  which  he  testified  on  this  trial. 
The  defendant  also  controverted  the  plaintiff's  evidence  upon 
the  point  of  notice  to  the  officers  of  the  defendant,  of  the  trans- 
fer to  him  by  the  Bank  of  Georgetown  of  $10,000  of  its 
claim.  But  the  jury  found  for  the  plaintiff  upon  these  con- 
troverted questions,  and  their  finding  is  conclusive  upon  this 
appeal. 

It  is  claimed,  however,  that,  admitting  the  truth  of  the  plain- 
tiff's narration  of  the  transaction  with  the  Bank  of  Georgetown, 
it  did  not,  in  law,  constitute  an  assignment  by  the  bank  to  the 
plaintiff  of  $10,000  of  the  debt  against  the  defendant,  for  the 
reasons,  first  that  the  contract  actually  made  was  reduced  to 
writing,  and  is  represented  by  the  check,  and  that  oral  evidence 
was  inadmissible  to  show  that  anything  else  was  contemplated 
by  the  parties,  except  the  sale  and  purchase  of  a  bill  of  exchange, 
with  the  ordinary  incidents  flowing  from  that  transaction  ; 
second,  that  there  was  no  delivery  of  any  account,  document, 
or  writing  showing  the  existence  or  character  of  the  debt  under- 
taken to  be  assigned  ;  and,  third,  that  the  alleged  assignment 
only  included  a  part  of  the  general  fund  on  deposit  with  the 
defendant  to  the  credit  of  the  Bank  of  Georgetown. 

We  are  of  opinion  that  neither  of  these  objections  is  tenable. 
The  relation  between  the  Phenix  Bank  and  the  Bank  of  George- 
town was  that  of  debtor  and  creditor.  The  order  drawn  by 
the  Bank  of  Georgetown  upon  the  Phenix  Bank  was  not  a  con- 
tract between  the  parties  to  this  action  ;  and  as  between  the 
plaintiff  and  the  Bank  of  Georgetown,  the  giving  of  the  order 
was  equally  consistent  with  the  ordinary  transaction  of  the 
purchase  of  a  draft  or  the  assignment  of  the  debt  against  the 
Phenix  Bank  to  the  amount  of  the  order,  and  the  taking  of  the 
order  as  a  convenient  method  of  enabling  the  plaintiff  to  collect 
and  receive  the  portion  of  the  debt  assigned.  The  fact  that 
the  plaintiff  became  the  owner  of  the  debt,  by  agreement 
between  him  and  the  Bank  of  Georgetown,  made  contempo- 
raneously with  the  delivery  of  the  check,  imposed  no  new  obli- 
gation upon  the  defendant.  The  Phenix  Bank  was  not  bound 
to  give  a  written  acceptance  of  the  order.  Nor  could  it  be 
made  liable  upon  the  check  without  a  written  acceptance.  It 
was  bound,  as  it  had  always  been,  to  account  for  the  fund  in  its 
possession  to  the  Bank  of  Georgetown  or  to  its  assignee,  and 
pay  it  over  on  demand  of  the  legal  owner. 


SEC.  II.]  RISLEY   V.   THE   PIIEXIX   BANK   OF   N,  Y.  929 

In  respect  to  the  claim  that  there  was  no  delivery  to  the 
plaintiff,  at  the  time  of  the  alleged  transfer,  of  any  account  or 
document  showing  the  claim  intended  to  be  assigned,  it  is  to  be 
observed  that  the  claim  of  the  Bank  of  Georgetown  against  the 
Phenix  Bank  rested  in  open  account  on  the  books  of  the  re- 
spective banks.  The  chose  in  action  assigned  was  not  a  note 
or  bond  or  other  written  obligation,  the  retention  of  which  by 
the  alleged  assignor  would,  in  most  cases,  be  strong  if  not  con- 
clusive evidence  that  the  assignment  had  not  been  completed. 
But  an  assignment  of  an  account  may  be  made  without  writing 
or  delivery  of  any  written  statement  of  the  claim  assigned,  so 
as  to  vest  in  the  assignee  a  right  to  proceed  in  his  own  name 
for  the  recovery  of  the  debt,  provided  only  that  the  assignment! 
is  founded  on  a  valid  consideration  between  the  parties.  In 
Heath  v.  Hall,  4  Taunt.  327,  Lord  Mansfield  said  :  "If  two 
men  agree  for  the  sale  of  a  debt,  and  one  of  them  gives  the 
other  credit  in  his  books  for  the  price,  that  may  be  a  very  good 
assignment  in  equity  ;  its  resting  in  parol  is  no  objection."  In 
Tibbits  V.  George,  5  Ad.  &  El.  107,  a  verbal  assignment  of  a 
portion  of  a  debt  was  held  to  be  good.  Lord  Denman  said  : 
"  None  of  the  authorities  which  have  been  cited  show  that  it  is 
necessary  that  the  assignment  should  be  in  writing  in  order  to 
pass  an  equitable  interest,  although  in  very  many  cases  there 
was  a  writing."  In  Crocker  v.  Whitney,  10  Mass.  316,  Jack- 
son, J.,  speaking  of  an  assignment  to  the  plaintiff  of  money  of 
the  assignor  in  the  hands  of  the  defendant,  said  :  "  But  there 
appears  to  be  no  reason  why  it  may  not  be  as  well  affected  by  a 
verbal  request  or  assignment."  And  in  Dunn  v.  Snell,  15  Mass. 
481,  it  was  held  that  the  delivery  of  an  execution  was  a 
good  equitable  assignment  of  a  judgment,  and  Parker,  C.J., 
said  :  "  It  is  not  doubted  that  this  debt,  upon  which  this 
judgment  was  rendered,  might  have  been  assigned  in  writ- 
ing without  seal  or  even  according  to  the  decisions  without 
writing." 

The  claim  that  there  can  be  no  valid  assignment  of  a  part  of 
an  entire  debt  or  obligation  is  opposed  to  the  well-settled  rule 
in  this  State.  Taylor  z*.  Bates,  5  Cow.  376  ;  Wheeler  z/.  Wheeler, 
9  Cow.  34  ;  Pattison  v.  Hull,  9  Cow.  747  ;  Field  v.  The  Mayor, 
6  N.  Y.  179.  The  point  was  ruled  in  the  same  way  by  the 
Court  of  King's  Bench  in  Tibbits  v.  George  {supra).  The  ten- 
dency of  modern  decisions  is  in  the  direction  of  more  fully  pro- 
tecting the  equitable  rights  of  assignees  of  choses  in  action,  and 
the  objection  that  to  allow  an  assignment  of  part  of  an  entire 
claim  might  subject  the  creditor  to  several  actions  to  enforce  a 
single   obligation   has  much  less  force  under  a  system  which 


n^o  TALLMAN   V.    HOEY.  [cHAP.  UI. 

requires  all  parties  in  interest  to  be  joined  as  parties  to  the 
action.     See  note  to  Morton  v.  Naylor,  i  Hill,  585.' 

We  think  the  judgment  should  be  affirmed. 

All  concur. 

Judgment  affirmed. 


JACOB   B.  TALLMAN,  Respondent,  v.  JOHN    HOEY, 

Appellant. 

In  the  Court  of  Appeals  of  New  York,  October  10,  1882, 
[Reported  z'ft  89  N'ew  York  Reports  537.] 

Appeal  from  judgment  of  the  General  Term  of  the  Court  of 
Common  Pleas  in  and  for  the  city  and  county  of  New  York, 
entered  upon  an  order  made  February  7th,  1881,  which  affirmed 
judgment  in  favor  of  plaintiff,  entered  upon  a  verdict,  and 
affirmed  an  order  denying  a  motion  for  a  new  trial. 

This  action  was  brought  to  recover  a  balance  of  the  purchase- 
price  of  certain  premises  conveyed  by  plaintiff  to  defendant. 

Defendant  admitted  that  the  balance  claimed  was  unpaid,  but 
set  up  as  a  counter-claim  an  indebtedness  of  plaintiff  to  one 
Lynch,  a  real  estate  broker,  for  commissions  in  effecting  a  sale 
of  the  premises,  and  an  assignment  of  the  claim  to  defendant. 
On  the  trial  defendant  gave  in  evidence  the  following  instru- 
ment : 

Exhibit  L 
"  J.  B.  Tallman  : 

"  Please  pay  to  Mr.  John  Hoey,  or  bearer,  $850,  being  amount 
of  commissions  due  me  on  sale  of  624  Fifth  Avenue. 

"  M.   A.  J.  Lynch. 

"  New  York,  January  18,  1872." 

It  did  not  appear  that  defendant  was  indebted  to  Lynch  at 
the  time  of  the  delivery  of  said  instrument  to  him,  or  that  he 
paid  or  parted  with  anything  on  receipt  thereof. 

Charles  Edward  Souther  for  appellant. 

William  Allan  for  respondent. 

Finch,  J.  The  instrument  which  is  the  subject  of  this  litiga- 
tion is  described  by  the  plaintiff  as  a  bill  of  exchange,  and 
claimed  by  the  defendant  to  operate  as  an  equitable  assignment 
of  the  commissions  alleged  to  have  been  earned  by  Lynch  and 
due  from  the  plaintiff.     If  a  bill  of  exchange,  Tallman  could 

'  Only  so  much  of  the  opinion  is  given  as  relates  to  the  question  of  as- 
signment— Ed. 


SEC.  II.]  TALLMAN    7'.    IIOEY. 


931 


not  be  made  liable  for  want  of  acceptance  in  writing.  If  the 
holder  can  enforce  it  at  all,  it  must  be  upon  the  ground  of  an 
equitable  assignment.  But  the  circumstance  which  justifies  and 
induces  that  equitable  construction  which  treats  as  an  assign- 
ment what  is  not  strictly  and  legally  such,  is  the  e.xistence  of  a 
valuable  consideration  for  the  imperfect  transfer.  Brill  ?•. 
Tuttle,  81  N.  Y.  457.  It  proceeds  upon  a  necessity  demanded 
by  the  justice  of  the  case,  and  to  obviate  an  injury  or  a  wrong 
which  would  otherwise  occur.  Where  the  holder  has  parted 
with  nothing,  and  so  loses  nothing  by  the  application  of  ordinary 
legal  rules,  no  pressure  of  justice  requires  the  intervention  and 
the  help  of  an  equitable  doctrine.  And  so  it  follows  that,  con- 
ceding the  order  to  have  been  drawn  on  a  particular  fund 
(Att'y-Gen'l  e'.  Continental  Life  Ins.  Co.,  71  N.  Y.  325  ;  27  Am. 
R^P-  55)>  y^t  the  presence  of  a  valuable  consideration  upon\  1'^ 
which  the  order,  or  direction  to  pay,  was  founded,  becomes  the]  '-^ 
essential  and  necessary  element  of  an  equitable  assignment. 
That  element  is  wantmg  in  the  present  case.  It  is  claimed, 
however,  to  be  supplied  by  a  legal  presumption.  It  is  undoubt- 
edly true  that  where  an  actual  assignment  exists  it  is  presumed, 
in  the  absence  of  proof  of  the  facts,  to  have  been  made  upon 
adequate  consideration.  Belden  z'.  Meeker,  47  N.  Y.  311.  But 
here  no  actual  assignment  was  ever  executed.  The  equitable 
rule  which  transforms  a  mere  order  into  an  assignment  is 
brought  into  play  by  a  just  necessity,  existing  and  established, 
and  not  by  a  mere  possibility  or  presumption.  But  in  the  case 
at  bar  the  facts  proven  repel  any  such  presumption.  Not  only 
did  both  Lynch  and  Hoey,  when  upon  the  witness  stand,  fail 
to  assert  any  consideration  passing  between  them  for  the  order 
on  Tallman,  but  Lynch  tells  us  substantially  the  contrary.  He 
says  that  if  the  order  was  not  paid  he  expected  to  get  his  com- 
missions of  Tallman,  and  afterward  did  settle  with  him  for 
them  as  the  real  owner  to  whom  they  were  due.  These  facts 
indicate  that  the  order  was  without  actual  consideration  ;  that 
it  was  held  by  Hoey  merely  for  collection  as  the  agent  and  on 
behalf  of  Lynch,  or  at  most  was  an  unexecuted  and  imperfect 
gift.  In  neither  event  could  the  doctrine  of  equitable  assign- 
ment apply.  We  discover  no  ground  upon  which  the  counter- 
claim pleaded  can  rest,  and  the  plaintiff's  cause  of  action  for 
the  balance  of  purchase-money  being  conceded,  a  recovery  for 
that  was  properly  allowed. 

The  judgment  should  be  affirmed  with  costs. 

All  concur. 

Judgment  affirmed. 


932  WALKER  v.  THE   BRADFORD    OLD   BANK.    [CHAP.  III. 


WALKER  r.   THE    BRADFORD    OLD    BANK,   Limited. 

In  the  High  Court  of  Justice,  Queen's  Bench  Division, 
April  i,  1884. 

\_Reported  in  Law  Reports,  12  Queen's  Bench  Division  511. J 

This  was  a  special  case  stated  in  an  action  brought  to  recover 
a  sum  of  p/^217  Zs.  ^d.,  the  amount  standing  to  the  credit  of  the 
account  of  Robert  Vincent  Reynolds  at  the  defendants'  bank  at 
the  date  of  his  death. 

The  following  are  the  material  statements  contained  in  the 
special  case. 

By  an  indenture  of  settlement  dated  March  ist,  1881,  and 
made  between  Robert  Vincent  Reynolds  and  the  plaintiff, 
William  Walker,  after  reciting  that  Reynolds  was  possessed  of 
(inter  alia)  money  at  his  bankers  the  Bradford  Old  Bank,  Lim- 
ited, and  being  desirous  of  disposing  of  {inter  alia)  the  cash  at 
his  bankers,  and  all  moneys  which  might  thereafter  come  to  his 
hands  or  be  paid  to  him  from  any  source  whatsoever  for  the 
benefit  of  himself  and  two  of  his  daughters,  Louisa  Ann  Rey- 
nolds  and  Sarah  Vincent  Reynolds,  had  determined  to  assign 
and  transfer  the  same  to  the  plaintiff  in  manner  and  upon, the 
trusts,  intents,  and  purposes  thereinafter  declared,  it  was  wit- 
nessed that  in  pursuance  of  such  desire  and  intention,  and  in 
consideration  of  his  natural  love  and  affection  for  Louisa  Ann 
Reynolds  and  Sarah  Vincent  Reynolds,  he  did  thereby  assign, 
transfer,  and  dispose  of  unto  the  plaintiff,  his  executors,  admin- 
istrators, and  assigns  {inter  alia)  :  "  Fourthly,  all  moneys  now 
or  hereafter  to  be  standing  to  the  credit  of  the  said  Robert 
Vincent  Reynolds  in  the  books  of  or  at  the  said  bank  at  Brad- 
ford aforesaid  called  the  '  Bradford  Old  Bank,  Limited." 
Fifthly,  all  moneys  which  from  time  to  time  may  come  into  the 
hands  of  or  be  paid,  or  made  payable  to  the  said  Robert  Vin- 
cent Reynolds  and  all  other  the  personal  estate  of  the  said 
Robert  Vincent  Reynolds  which  now  or  hereafter  may  come 
into  the  possession  of,  or  in  any  way  belong  to  or  be  owned  and 
enjoyed  by  the  said  Robert  Vincent  Reynolds,  and  all  the  estate 
and  interest  of  the  said  Robert  Vincent  Reynolds  in,  to,  and 
out  of  the  premises  hereinbefore  expressed  to  be  hereby  assigned, 
together  with  power  to  the  said  William  Walker,  his  executors, 
administrators,  and  assigns,  to  sue  and  give  receipts  for  all 
sums  of  money  now  due  or  hereafter  to  become  due  to  the  said 
Robert  Vincent  Reynolds  in  the  name  or  names  of  the  said 


SEC.  11.]  WALKER  V.  THE    BK.VDEORD    OLD    H.VNK.  933 

Robert  Vincent  Reynolds,  his  executors  or  administrators,  to 
have  and  to  hold  the  said  premises  hereinbefore  expressed  to 
be  hereby  assigned  unto  the  said  William  Walker,  his  executors, 
administrators,  and  assigns  absolutely." 

It  was  declared  by  the  said  indenture  that  tiie  plaintiff  should 
stand  possessed  of  the  premises  thereby  assigned  "  upon  trust 
for  the  said  Robert  Vincent  Reynolds  during  his  life,  and  after 
his  death  upon  trust  for  the  use  of  the  said  Louisa  Ann  Rey- 
nolds and  Sarah  Vincent  Reynolds  in  equal  shares,  to  be  dis- 
posed of  and  applied  for  the  benefit  of  the  said  Louisa  Ann 
Reynolds  and  Sarah  Vincent  Reynolds,  respectively,  at  such 
times  and  in  such  manner  as  the  said  William  Walker,  his  ex- 
ecutors, administrators,  or  assigns  in  his  or  their  absolute 
discretion  might  think  fit." 

No  notice  was  given  to  the  defendants  of  the  assignment  in 
the  lifetime  of  R.  V.  Reynolds. 

R.  V.  Reynolds  at  the  date  of  the  said  indenture  had  at  the 
defendants'  bank  an  ordinary  private  banking  account  to  which 
dividend  warrants,  checks,  and  moneys  were  from  time  to  time 
paid  in  the  usual  way,  and  upon  which  checks  were  drawn. 
After  November  2d,  1882,  no  moneys  were  paid  into  the  de- 
fendants' bank  to  the  credit  of  the  account. 

R.  V.  Reynolds  died  on  December  12th,  1882.  No  letters  of 
administration  to  his  personal  estate  were  taken  out,  nor  was 
any  will  proved.  On  February  2d,  1883,  the  plaintiff  gave  the 
defendants  express  notice  of  the  assignment  contained  in  the 
indenture  of  settlement,  and  demanded  payment  of  all  moneys 
then  standing  to  the  credit  of  R.  V.  Reynolds  at  defendants* 
bank. 

The  amount  standing  to  the  credit  of  R.  V.  Reynolds  on 
March  ist,  1881,  was  ^48  4J-.  3^.,  and  at  the  time  of  his  death 
was  ;£,2\i  8j-.  Tyd. 

The  defendants  refused  to  pay  the  money  to  the  plaintiff. 

The  questions  submitted  for  the  judgment  of  the  Court  were  : 

1.  Whether  the  indenture  was  a  good  and  valid  assignment 
of  the  money  in  the  defendants'  bank  standing  to  the  credit  of 
R,  V.  Reynolds  either  at  the  date  of  the  indenture  or  at  the 
date  of  his  death,  or  both. 

2.  Whether  the  money  in  the  defendants'  bank  standing  to 
the  credit  of  R.  V.  Reynolds  as  aforesaid  was  the  property  of 
the  plaintiff  by  virtue  of  the  assignment  contained  in  the  inden- 
ture, and  should  be  paid  by  the  defendants  to  the  plaintiff  upon 
his  receipt  alone. 

3.  Whether  the  declaration  of  trust  contained  in  the  indenture 
was  a  good  and  valid  declaration  of  trust  of  the  same  money  in 


934  WALKER  V.  THE    BRADFORD    OLD    BANK.    [cHAP.  III. 

favor  of  Louisa  Ann  Reynolds  and  Sarah  Vincent  Reynolds, 
and  whether  such  money  should  be  paid  to  the  plaintiff  as 
trustee  for  them. 

T.  L.  Wilkinson  for  the  plaintiff. 

K.  E.  Digby  for  the  defendants. 

Thp  judgment  of  the  Court  (Williams  and  Smith,  JJ.)  was 
read  by 

Smith,  J.  This  is  an  action  brought  by  the  plaintiff  to  re- 
cover from  the  defendants  the  sum  of  ^'2\']  %s.  2,d.,  being  the 
amount  standing  to  the  credit  of  Robert  Vincent  Reynolds  in 
their  hands  at  the  date  of  his  death  on  December  12th,  1882. 
The  facts  are  set  forth  in  the  special  case  herein,  and  need  not 
be  now  repeated. 

Three  points  were  raised  by  the  bank  (the  defendants)  in 
answer  to  the  plaintiff's  claim.  First,  they  alleged  that  the 
assignment  of  March  ist,  1881,  under  which  the  plaintiff  claimed, 
was  a  voluntary  assignment,  and  was  not  one  which  a  court  of 
equity  would  under  all  circumstances  have  enforced.  Secondly, 
that  at  the  date  of  the  assignment  the  ^217  8^.  3^/.  was  no  debt 
or  other  legal  chose  in  action  within  the  meaning  of  sub-sec.  6  of 
§  25  of  the  act.  Thirdly,  that  the  notice  of  the  assignment 
not  having  been  given  till  after  the  death  of  the  assignor, 
it  was  then  too  late  to  give  it,  and  that  it  was  therefore  in- 
effectual. 

As  to  the  first  point,  although  §  25,  sub-sec.  6,  of  the  Judicature 
Act,  1873,  does  not,  in  my  view,  give  new  rights,  but  only 
affords  a  new  mode  of  enforcing  old  rights,  still  I  am  of  opinion 
that  the  point  now  taken  will  not  avail  the  defendants. 

The  assignment  was  executed  on  March  ist,  1881.  The 
assignor  died  on  December  12th,  1882.  No  person  claiming 
under  the  assignment,  and  no  person  claiming  under  the 
assignor,  and,  indeed,  no  person  having  any  interest  whatever 
in  the  assignment,  has  ever  taken  any  step  to  impugn  it,  and 
up  to  the  present  time  it  stands  valid  and  unimpeached.  I  am 
of  opinion  that,  this  being  so,  it  is  not  competent  for  a  mere 
stranger  to  the  assignment  to  successfully  raise  any  point  as  to 
whether  a  court  of  equity  would  or  would  not  enforce  it,  and 
I  am  of  opinion,  even  if  the  point  now  taken  by  the  defendants 
as  to  what  the  Court  of  Equity  under  the  circumstances  of  this 
case  would  or  would  not  do,  be  correct,  that  it  is  not  open  to 
the  defendants,  being  mere  debtors  to  the  estate  of  the  deceased 
assignor  or  to.  his  assignee,  now  to  attempt  to  impeach  the 
settlement. 

As  to  the  second  point,  it  is  said  that  the  assignment  of 
March  ist,  1881,  is  not  "  an  absolute  assignment  of  any  debt  or 


SEC.  II.]  WALKER  V.  THE   BRADFORD   OLD   BANK.  935 

Other  legal  chose  in  action,"  within  the  meaning  of  §  25, 
sub-sec.  6,  of  the  act,  because  at  the  date  of  the  assignment — 

{a)  The  ^217  8j.  3^.  was  not  an  existing  debt  ; 

[b)  No  right  arising  out  of  contract  then  existed  between  the 
assignor  and  the  defendants  ; 

{c)  No  legal  chose  in  action  then  existed,  and  therefore  there 
was  nothing  capable  of  being  then  assigned. 

To  this  I  answer  that  it  seems  to  me  that  the  cases  of  Brice  v. 
Bannister'  and  of  Buck  v.  Robson*  decide  that  if  an  accruing 
debt  arising  out  of  contract  be  assigned,  though  not  due  at  the 
date  of  assignment,  such  assignment  satisfies  the  provisions  of 
sub-sec.  6  of  §  25  of  the  Act  of  1873. 

In  the  present  case  what  has  been  assigned,  to  use  the  words 
of  the  indenture  of  assignment,  is  "All  moneys  now  or  here- 
after to  be  standing  to  the  credit  of  the  said  Robert  Vincent 
Reynolds"  (the  assignor)  "  in  the  books  of  or  at  the  said  bank 
at  Bradford,  aforesaid,  called  the  Bradford  Old  Bank,  Lim- 
ited." It  was  conceded  in  argument  by  the  defendants  that  the 
moneys  thereafter  paid  into  the  bank  to  the  cfredit  of  the 
assignor  were  capable  of  being  the  subject-matter  of  contract 
(Holroyd  v.  Marshall^),  and  I  am  of  opinion  that  before  and  at 
the  date  of  the  assignment,  and  as  long  as  the  relation  of  cus- 
tomer and  banker  continued  between  the  assignor  and  the  bank, 
the  ordinary  relation  of  debtor  and  creditor  existed  between 
them  (with  the  superadded  obligation  on  the  bank's  part  to 
honor  the  assignor's  checks,  which  is  immaterial  to  the  point 
under  consideration),  and  that  consequently  there  existed  a 
contract  on  the  bank's  part  to  pay  over  on  demand  to  the 
assignor  all  moneys  then  or  thereafter  standing  to  his  credit. 
It  seems  to  me,  therefore,  in  this  case,  that  at  the  date  of  the 
assignment  there  was  an  accruing  debt  arising  out  of  contract, 
and  consequently  that  this  point  also  fails  the  defendants. 

As  to  the  third  point,  it  is  said  by  the  defendants  that  by 
sub-sec.  6,  of  §  25,  of  the  Act  of  1873,  the  notice  to  be  given  to 
the  debtor  must  be  given  in  the  lifetime  of  the  assignor.  In 
the  first  place  I  answer  that  there  is  no  such  limit  of  time  men- 
tioned in  the  section.  It  is  not  stated  by  whom  the  notice  is  to 
be  given,  but  the  effect  of  not  giving  it  is  to  let  in  all  equities 
which  may  exist  or  be  created  prior  thereto. 

It  is  then  said  that  the  legal  right  to  the  debt  or  chose  in 
action  is  only  passed  to  the  assignee  from  the  date  of  the  notice, 
and  that  therefore  the  notice  must  be  given  in  the  lifetime  of 
the  assignor,  for  otherwise  the  legal  right  would  upon  his  death 

'  3  Q.  B.  D.  569.  and  in  C.  A.  at  p.  575.  '  3  Q-  B.  D.  6S6. 

3  10  H.  L.  C.  191. 


936  DEVON   V.    POWLETT.  [CHAP.  III. 

vest  in  his  personal  representatives,  and  not  pass  to  the  assignee. 
I  do  not  adopt  this  contention.  In  my  view  the  meaning  of  the 
sub-section  is,  that  until  the  assignee  has  given  the  prescribed 
notice,  he  would  have  to  sue  as  he  would  theretofore  have  sued, 
but  when  the  notice  is  given  then  he  may  bring  an  action  at 
law  in  his  own  name  without  being  incumbered  with  having  to 
sue  in  the  name  of  the  assignor,  or  of  having  to  make  him  a 
party  to  the  action. 

I  am  therefore  of  opinion  that  the  defendants'  points  fail,  and 
the  plaintiff  is  entitled  to  judgment,  and  with  costs. 

My  Brother  Williams  agrees  in  the  result  of  this  judgment. 

Judgment  for  the  plaintiff. 


DEVON  V.  POWLETT. 

In  the  Exchequer  Chamber,  Michaelmas  Term,  1714c 

[Reported  in  2  Viner's  Abridgment  132. j 

M.  de  Devon,  the  plaintiff,  brought  an  action  upon  the  case 
as  administratrix  of  Sampson  de  Vese  de  Lake  v.  Powlett,  upon 
a  promise  made  to  him  to  pay  upon  his  marriage  to  the  intestate 
or  his  order,  his  heirs  or  executors,  the  sum  of  50  guineas,  and 
did  not  aver  that  the  money  was  not  paid  to  the  intestate's 
heir.  The  plaintiff  had  judgment  upon  nihil  dicit,  whereupon 
the  defendant  brought  a  writ  of  error  in  the  Exchequer  Cham- 
ber, where  this  case  was  twice  argued,  the  counsel  for  the 
plaintiff  in  error  insisted  that  the  declaration  was  bad  because 
by  the  promise  the  money  was  made  payable  to  the  intestate  or 
his  order,  his  heirs  or  executors,  and  the  plaintiff  had  not 
averred  that  it  was  not  paid  to  his  heir,  to  whom  by  the  very 
terms  of  the  contract  it  was  made  payable  as  well  as  to  his 
executors.  But  Cowper,  L.C.,  Parker,  C.J.  de  B.R.,  and 
King,  C.J.  de  C.B.,  resolved  that  the  declaration  was  good 
without  such  averment,  the  thing  contracted  for  being  a  mere 
personalty,  for  by  the  law  all  personalties  and  rights  to  the 
personalties  are  given  to  the  executors  or  administrators,  as  all 
realties  and  rights  to  realties  are  given  to  the  heir  ;  the  execu- 
tors or  administrators  being  representatives  of  a  man,  in  respect 
of  his  personalties,  in  like  manner  as  the  heir  in  respect  of  the 
realties,  therefore  if  a  man  enters  into  an  obligation  to  pay  to 
another  or  his  heirs  a  sum  of  money,  his  executors  or  adminis- 
trators, and  not  his  heirs  shall  have  it,  so  if  one  enters  into  a 
recognizance  according  to  23  H.  8.  cap.  6,  the  form  whereof  as 


I 
i 


SEC.  n.]  BECKHAM  V.  DRAKE,  KNIGHT  &  SURGEV.  937 

set  down  in  the  statute  is  solvend,  cidcin  J.  Hcercdibus  vel  Execu- 
toribus,  his  executor,  and  not  his  heir  shall  have  the  benefit  of 
it,  and  judgment  was  after  entrcd  terniino  Mich,  i  Geo.  in  Scacc. 
Devon  v.  Powlett.  

BAXTER  V.  BURFIELD. 

In  the  King's  Bench,  Easter  Term,  1746. 

^Reported  in  2  Strange  1266.] 

In  debt  on  bond,  condition  for  Matthias  Anderson's  perform- 
ance of  the  covenants  in  an  indenture  of  apprenticeship,  whereby 
he  was  bound  to  the  plaintiff's  testator,  who  was  a  mariner. 
The  defendant  pleaded  that  Anderson  served  faithfully  to  the 
death  of  the  testator.  The  plaintiff  replied  that  since  the  death 
of  the  testator  Anderson  had  absented  from  her  service,  to 
which  there  was  a  demurrer.  And  after  argument  at  bar  the 
Chief  Justice  delivered  the  resolution  of  the  Court — viz.,  that 
they  were  all  of  opinion  the  defendant  should  have  judgment, 
and  the  executrix  could  maintain  no  such  action.  The  binding 
was  to  the  man,  to  learn  his  art,  and  serve  him  withoutany 
mention  of  executors.  And  as  the  words  are  confined,  so  is  the 
nature  of  the  contract,  for  it  is  fiduciary,  and  the  lad  is  bound 
from  a  personal  knowledge  of  the  integrity  and  ability  of  the 
master  (Hob.  134;  Vaugh.  182  ;  3  Keb.  519  and  i  Keb.  820; 
I  Sid.  216),  and  they  denied  the  case  in  i  Lev.  177.  An  award 
(Hil.  8  Ann.  Home  v.  Blake)  that  an  apprentice  should  be 
assigned  was  held  void  unless  there  was  a  custom  or  the  con- 
currence of  the  apprentice.  And  they  held  it  was  not  material 
that  according  to  Cro,  Eliz.  553  the  assets  were  liable  on  the 
master's  covenant  to  maintain.     Therefore  judgment //-i?  ^^Z'. 


BECKHAM  V.  DRAKE,  KNIGHT,  and  SURGEY. 

In  the  Court  of  Exchequer,  July  10,  1841. 

^Reported  in  8  Meeson  &^  Welsby  846.] 

Assumpsit.  The  declaration  stated  that  the  defendants  were 
united  in  copartnership,  and  used  and  exercised  the  trade  and 
business  of  type-founders,  stereotype-founders,  and  letter-press 
printers,  and  that  the  said  W.  M.  Knight  and  J.  Surgey  were 
the  ostensible  partners,  and  W.  W.  Drake  was  a  secret  partner 
in  the  said  copartnership  ;  that  at  the  time  of  making  the 
memorandum  of  agreement  thereinafter  mentioned,  the  plaintiff 
was  in  the  employ  of  the  defendants  as  their  foreman,  but  with- 


938  BECKHAM  V.  DRAKE,  KNIGHT  &  SURGEY.     [chap.  hi. 

out  any  permanent  engagement,  and  the  defendants  were  de- 
sirous of  continuing  their  connection  together  for  seven  years 
from  October  20th,  1834  ;  and  thereupon,  on  October  23d,  1834, 
the  said  W.  M.  Knight  and  J.  Surgey,  on  behalf  of  themselves 
and  the  said  \V.  W.  Drake,  as  such  partners  as  aforesaid,  made 
and  entered  into  a  certain  memorandum  of  agreement  with  the 
plaintiff,  as  follows  : 

"  Memorandum  of  an  agreement  made  and  entered  into  this 
October  23d,  1834,  a.d.,  between  William  Moxey  Knight  and 
John  Surgey,  of  Bishop's  Court,  Old  Bailey,  in  the  city  of 
London,  type-founders,  stereotype-founders,  and  letter-press 
printers,  and  copartners  of  the  one  part,  and  Daniel  Beckham, 
of  the  same  place,  of  the  other  part,  as  follows  :  Whereas  the 
said  D.  Beckham  hath  been  for  some  time  in  the  employment 
of  the  said  W.  M.  Knight  and  J.  Surgey,  as  their  foreman,  in 
carrying  on  their  said  trades  of  type-founders,  etc.,  and  the 
said  parties  to  these  presents  are  mutually  desirous  of  continu- 
ing their  connection  together  for  the  term  of  seven  years  from 
the  date  of  these  presents.  Now  these  presents  witness  that 
the  said  D.  Beckham,  for  the  considerations  hereinafter  men- 
tioned, doth  hereby  covenant  and  agree  to  and  with  the  said 
W.  M.  Knight  and  J.  Surgey,  and  the  survivor  of  them,  in 
manner  following  (that  is  to  say),  that  he,  the  said  D.  Beckham, 
shall  and  will  well  and  faithfully  serve  the  said  W.  M.  Knight 
and  J.  Surgey,  and  the  survivor  of  them  for  and  during  the 
term  of  seven  years,  to  commence  and  be  computed  from  the 
day  of  the  date  of  these  presents  as  their  foreman,  in  the  man- 
agement and  carrying  on  of  their  said  trades  of  type-founders, 
etc.,  and  shall  and  will,  to  the  best  of  his  power,  promote  and 
advance  the  success  and  prosperity  of  the  said  W.  M.  Knight 
and  J.  Surgey  in  their  said  trades  ;  and  also  that  he,  the  said  D. 
Beckham,  shall  not  nor  will,  during  the  said  term  of  seven  years, 
be  engaged  or  concerned  in  the  same  yr  any  other  trade  or 
business,  either  on  his  own  account,  or  on  account  of,  or  for  the 
benefit  of  any  other  person  whatsoever,  other  than  the  said 
W.  M.  Knight  and  J.  Surgey,  and  the  survivor  of  them,  without 
the  consent  of  the  said  W.  M.  Knight  and  J.  Surgey,  or  one  of 
them  in  writing,  first  had  and  obtained  for  that  purpose  ;  and 
the  said  W.  M.  Knight  and  J.  Surgey,  for  the  considerations 
aforesaid,  do  hereby,  for  themselves  and  the  survivor  of  them, 
covenant  and  agree  to  and  with  the  said  D.  Beckham,  that  they, 
the  said  W.  M.  Knight  and  J.  Surgey,  or  the  survivor  of  them, 
shall  and  will  employ  the  said  D.  Beckham  as  their  foreman  in 
carrying  on,  managing,  and  conducting  the  said  trades  of  type- 
founders, etc.,  during  the  said  term  of  seven  years,  if  the  said 


SEC.  II.]  BECKH.WI  7'.  DRAKK,  KXIGHT&  SURGEV.  939 

W.  M.  Knight  and  J.  Surgey,  or  either  of  them,  shall  so  long 
live,  and  the  said  D.  Beckham  shall  well  and  faithfully  observe 
and  keep  the  covenants  and  agreements  hereinbefore  on  his 
part  contained  ;  and  that  they,  the  said  W.  M.  Knight  and 
J.  Surgey,  or  the  survivor  of  them,  shall  and  will  pay  to  tlie 
said  D.  Beckham  wages  after  the  rate  of  ^,^3  3^.  of  lawful  money 
weekly.  And  it  is  hereby  mutually  agreed  and  declared  by 
and  between  the  said  parties  hereto,  that  in  case  either  of  the 
said  parties  shall  not  well  and  truly  observe,  and  perform,  and 
keep  the  covenants  and  agreements  herein  on  their  respective 
parts  contained,  that  then  and  in  such  case  the  party  so  failing 
or  making  default  shall  and  will  pay  to  the  other  of  ihem  ^500 
by  way  or  in  the  nature  of  specific  damages.      In  witness,"  etc. 

The  declaration  then  averred  performance  of  the  agreement 
by  the  plaintiff  during  the  time  he  remained  in  the  service  of 
the  defendants,  and  that  the  plaintiff  was  ready  and  willing  to 
have  continued  in  the  service  of  the  defendants,  and  to  have 
performed  the  agreement,  but  that  the  defendants,  before  the 
expiration  of  the  seven  years,  without  reasonable  or  sufficient 
cause,  dismissed  and  discharged  him  from  their  service,  etc. 

The  defendant  Knight  allowed  judgment  to  go  by  default. 
The  other  two  defendants  severally  pleaded  :  first,  7ion  assutnpsit  ; 
secondly,  the  bankruptcy  of  the  plaintiff.  To  the  latter  plea 
the  plaintiff  demurred  generally  on  the  ground  that  the  contract 
set  out  in  the  declaration  being  a  contract  for  the  personal  labor 
of  the  plaintiff,  his  cause  of  action  did  not  pass  to  the  assignees. 

The  defendant's  points  were  that  the  breach  of  contract  com- 
plained of,  having  occurred  before  the  bankruptcy  of  the  plain- 
tiff, the  damages  resulting  therefrom  formed  part  of  the  per- 
sonal estate  of  the  bankrupt  at  the  time  of  his  bankruptcy,  and 
therefore  passed  to  his  assignees. 

The  case  was  argued  on  June  25th  by 

Siaffwiers  for  the  plaintiff. 

E.   V.   Williams,  contra. 

The  judgment  of  the  Court  was  now  delivered  by 

Parke,  B.  This  is  an  action  on  a  contract  whereby  the 
defendants  agreed  to  employ  the  plaintiff  for  seven  years  as 
'  foreman  in  a  business  requiring  his  personal  skill.  The 
contract  was  broken  by  dismissing  the  plaintiff  altogether  ;  the 
plaintiff  then  became  bankrupt,  and  the  question  is  whether 
the  right  of  action  for  the  breach  of  the  contract  passed  to  his 
assignees. 

There  is  a  clause  in  the  agreement  that,  in  case  either  of  the 
parties  shall  not  observe  the  contract,  he  shall  pay  to  the  other 
;;^5oo  by   way  of  liquidated   damages,   but  there  being  man3' 


040  BECKHAM  Z^.  DRAKE,  KNIGHT  &  SURGEV.      [cHAP.  III. 

Stipulations  on  each  side,  of  different  degrees  of  importance,  it 
is  admitted  that  the  case  cannot  be  distinguished  from  that  of 
Kemble  v.  Farren,  6  Bing.  141,'  and  consequently  the  defence 
is  not  rested  on  the  ground,  that  by  the  breach  a  sum  certain 
became  due  to  the  bankrupt,  which  the  assignees  had  a  right 
to  as  being  in  the  nature  of  a  debt.  The  question  then  is 
whether  the  right  to  sue  for  unliquidated  damages  for  the 
bygone  breach  of  such  a  contract  passes  to  the  assignees  ? 

Under  the  6  Geo.  4,  ch.  16,  §  6t^  "  all  the  present  and  future 
personal  estate  of  the  bankrupt,  and  all  debts  due  to  him"  are 
assigned  and  rendered  recoverable   by  the  assignees,  and  under 
these   terms  are   comprised   not   merely   personal   chattels   and 
debts,  properly  so  called,  but  all  rights  of  action  for  injuries  to 
personal  chattels,  and  for  breaches  of  contract  relative  to  the 
personal   estate   of   the  bankrupt,  whereby   that   estate  is  pre- 
vented from  coming  to  the  hands  of  the  assignees  or  diminished 
in  value.     In  such  cases,  if  the  wrongs  had  not  been  committed, 
or  if  the  contract  had  been  performed,  the  bankrupt's  personal 
estate  would   have  been  larger.      Hancock  v.    Caffyn,   8   Bing. 
358  ;''  I  M.  &  Scott,  521.     The  terms  of  the  section  include  also 
every  beneficial  contract,  executory  or  part  executed,  which  the 
assignees  could  perform,  and  thereby  add  to  the  personal  estate. 
Gibson  v.   Carruthers,  a/iie,   321.     This  contract   is  not  one  of 
that  description.     On   the  other  hand,  the  right  of   action  for 
damages,  for  torts  committed  toward   the  bankrupt's  person  or 
reputation,  clearly  does  not  pass  to  the  assignees,  nor  for  tres- 
passes quare  clausum  fregit^  and  to  things  fixed  to  the  freehold 
(Clarke  v.  Calvert,  8  Taunt.  742  ;'  3  Moore,  96),  nor  for  trespasses 
^^r  quod  servitiu7n  ajuisit  (\iiov!axd  v.  Crowther,  ante,  p.  601),  nor 
would  a  right  of  action  for  the  breach  of  all  contracts  pass. 
There  are  some  for  which  an  executor  could  not  sue,  as  for 
breach  of  promise  of  marriage  to  a  female  without  special  dam- 
age to  the  personal  estate  (Chamberlain  v.  Williamson,  2  M.  & 
Sel.  408),  nor  would  it  seem   that  he  could   sue  for  breach  of 
contracts  relating  to  the  person   of   the  deceased,  as  for  negli- 
gently carrying  him   by  a  coach  or  vessel,  or  negligently  con- 
ducting his  cure,  whereby  his  person  was  injured,  or  negligently 
conducting  a  suit  whereby  he  was  imprisoned.     And  the  rights 
of  an  executor  are  not  so  limited  as  those  of  an  assignee  ;  he 
stands   in   the   place  of  the  testator  by  the  common  law,  and 
represents    him    as    to    all    his    contracts   and   personal    rights, 
whether  they  are  available   as   assets   for  the  payment  of   his 
debts  or  not,  for  his  liability  to  pay  debts  is  the  consequence, 
not  the  object  of  his  appointment  ;  but  an  assignee  is  appointed 
1  E.  C.  L.  R.  vol.  19.  2  E.  C.  L.  R.  vol.  21.  ^  Ibzd.  4. 


SEC.  II.]  BECKHAM  V.  DRAKE,  KNIGHT  &  SUKGEV.  94I 

by  statute  for  the  purpose  of  distribution  among  creditors,  and 
taKes  only  those  beneficial  matters  (to  use  the  language  of  Lord 
Tenterden  in  Wright  v.  Fairfield,  2  B.  &  Adol.  727')  whicii  may 
be  applied.  There  would  be  no  difficulty  in  saying,  therefore, 
that  actions  for  breaches  of  such  contracts  as  relate  to  the  per- 
son simply  would  not  pass  to  the  assignees.  But  suppose  tlie 
result  of  a  breach  of  contracts  relating  to  the  person  to  be  a 
damage  not  to  the  person  only,  but  also  to  the  personal  estate  ; 
as,  for  instance,  if  in  the  case  of  negligent  carriage  or  cure  there 
were  consequential  damage,  that  the  plaintiff  had  expended  his 
money,  or  had  lost  the  profits  of  a  business,  or  the  wages  of 
labor  for  a  time  ;  or  suppose  a  joint  contract  to  carry  both  the 
person  and  the  goods,  and  both  were  injured,  the  executor 
probably  might  sue  for  a  breach  of  such  contract  and  recover 
damages  to  the  extent  of  the  injury  to  the  personal  estate  ;  and 
there  is  no  other  who  could  sue,  but  could  the  assignee  of  a 
bankrupt  sue  in  any  of  these  cases  ?  Could  the  right  of  action 
on  the  contract  be  divided  into  two  on  the  bankruptcy,  and  the 
bankrupt  sue  for  one  part  and  the  assignee  for  another  ?  It 
might,  perhaps,  where  the  contract  itself  originally  related  to 
both  ;  but  could  it  where  the  contract  relates  to  the  person 
only,  and  the  consequence  of  a  breach  of  it  is  an  injury  to  the 
personal  estate  as  well  as  to  the  person  ?  No  case  has  yet  gone 
so  far  as  to  hold  that  any  right  of  action  on  such  a  contract 
passes  to  the  assignees  by  reason  of  consequential  damages  to 
the  estate  ;  and  it  cannot  be  lost  altogether,  and  the  sounder 
principle  seems  to  us  to  be  that  the  bankrupt  should  sue  upon 
it,  as  it  relates  to  the  person  of  the  bankrupt  (the  damages  when 
recovered,  if  recovered  before  the  certificate,  of  course  belong- 
ing to  the  assignees  as  after-acquired  personal  estate)  ;  and 
that  the  assignees  can  only  sue  for  the  breach  of  such  contracts 
as  in  their  nature  relate  to  personal  estate,  or  to  some  subject 
of  property  which  does  not  pass  to  the  assignees. 

In  that  view  of  the  case  the  present  action  would  not  pass,  it 
relates  to  the  person  ;  it  is  for  the  employment  of  the  personal 
skill  and  labor  of  the  bankrupt,  and  the  damage  for  the  breach 
of  it  would  be  compounded  partly  of  the  personal  inconvenience 
to  himself,  and  partly  of  the  consequential  loss  to  his  personal 
estate  by  reason  of  his  not  being  able  to  earn  so  much  in  another 
employment.  We  think  that  the  plaintiff  is  entitled,  notwith- 
standing his  bankruptcy,  to  sue  on  such  a  contract  as  this,  and 
that  our  judgment  on  this  demurrer  must  be  for  the  plaintiff. 

Judgment  for  the  plaintiff. 

1  E.  C.  L.  R.  vol.  22. 


942  CHAMBERLAIN   V.    WILLIAMSON.  [cHAP,  III. 


CHAMBERLAIN,    Administrator     of     ANN     CHAMBER- 
LAIN,  Deceased,  v.  WILLIAMSON. 

In  the  King's  Bench,  February  ii,  1814. 

[Reporled  in  2  Maule  <S-»  Seliuyn  408.] 

Assumpsit  by  the  plaintiff  as  administrator  upon  a  breach  of 
promise  of  marriage  made  to  the  intestate,  laying  the  promise 
in  the  usual  way  ;  and  the  plaintiff  avers  that  the  intestate, 
confiding  in  the  said  promise,  etc.,  remained  sole  and  unmarried 
until  her  death,  and  was  ready,  etc.,  and  although  she  requested 
the  defendant,  etc.,  yet  the  defendant  did  not  when  requested, 
or  at  any  time  marry  her,  but  refused,  etc.  And  there  were 
several  other  counts  varying  the  promise,  but  the  declaration 
did  not  allege  any  special  damage,  but  concluded  to  the  dam- 
age of  the  plaintiff  as  administrator,  etc.      Plea,  non  assumpsit. 

At  the  trial  before  Bayley,  J.,  at  the  last  assizes  for  the  county 
of  Gloucester,  the  promise  was  proved,  and  it  farther  appeared 
that  the  intestate  kept  a  boarding-school,  which  it  was  agreed 
with  the  defendant  that  she  should  relinquish  at  Christmas, 
181 2,  in  order  to  be  married.  In  the  preceding  November, 
however,  the  defendant  broke  off  all  farther  intercourse,  and 
soon  afterward  the  intestate's  health  began  to  decline,  and  she 
was  compelled  to  quit  her  school,  and  died  in  the  following 
May.  The  learned  judge  doubted  whether  the  action  were 
maintainable,  but  assuming  for  the  time  that  it  was,  he  directed 
the  jury  to  consider  of  the  damages  as  if  the  action  had  been 
by  the  intestate  herself,  for  that  whatever  compensation  in 
money  she  would  have  been  entitled  to  by  so  much  she  would 
have  died  the  richer.  The  jury  found  a  verdict  for  the  plain- 
tiff, damages  ^200. 

In  Michaelmas  term  a  rule  nisi  was  obtained  for  arresting  the 
judgment  on  the  ground  that  this  action  was  not  maintainable 
by  the  personal  representative,  or  for  a  new  trial  on  the  ground 
of  a  misdirection.  And  upon  the  first  point  the  stat.  4  Ed.  3, 
ch.  7,  de  bonis  asportatis  in  vita  testatoris^  and  31  Ed.  3,  ch.  11, 
where  cited,  and  also  Com.  Dig.,  Administration,  B.  13,  "  that 
by  the  equity  of  these  statutes  an  executor  or  administratoil 
shall  have  every  action  for  a  wrong  done  to  the  personal  estate 
of  his  testator,"  Latch.  168.  But  this,  it  was  said,  is  not  a 
wrong  to  the  personal  estate.  And  in  Mordant  v.  Thorold'  it 
was  resolved  that  the  administrator  was  not  entitled  to  a  scire 
'  I  Salk.  252  ;  S.  C.  Carth.  133. 


I 


SEC.  II.]  CHAMBERLAIN   V.    WILLIAMSON.  943 

facias  upon  a  judgment  in  dower  obtained  by  his  intestate, 
where  she  died  before  the  damages  had  been  ascertained  on  a 
writ  of  inquiry,  because  the  writ  of  inquiry  being  in  the  nature 
of  a  personal  action  for  the  damages,  it  dies  with  the  person. 
And  as  to  the  misdirection,  it  was  objected  that  the  criterion  of 
damages  could  not  be  the  same  as  if  the  action  had  been  by  the 
intestate  herself,  by  reason  that  she  would  have  been  entitled 
to  damages  for  the  loss  of  personal  comfort,  and  advancement 
in  life,  and  also  for  personal  feelings,  whereas  the  administrator 
could  only  be  entitled  in  respect  of  the  damage  to  or  deteriora- 
tion of  her  personal  estate. 

Peake  (with  Dauncey)  now  showed  cause. 

Jervis  and  Abbott,  contra. 

Lord  Ellenborough,  C.J.,  on  this  day  delivered  the  judg- 
ment of  the  Court  in  substance  as  follows  : 

This  was  a  motion  in  arrest  of  judgment  in  an  action  brought 
by  the  plaintiff  as  administrator  for  a  breach  of  promise  of  mar- 
riage made  to  the  intestate  by  the  defendant.  The  declaration 
did  not  contain  any  allegation  of  special  damage,  and  the  ques- 
tion was  whether  the  action  is  maintainable  by  the  personal 
representative.  The  action  is  novel  in  its  kind,  and  not  any 
one  instance  was  cited  or  suggested  in  the  argument  of  its  hav- 
ing been  maintained,  nor  have  we  been  able  to  discover  any  by 
our  own  researches  and  inquiries,  and  yet  frequent  occasions 
must  have  occurred  for  bringing  such  an  action.  This  circum- 
stance imports  at  least  an  opinion  not  very  favorable  to  this 
species  of  action.  However,  that  would  not  be  a  decisive 
ground  of  objection  if  on  reason  and  principle  it  could  strictly 
be  maintained.  The  general  rule  of  law  is  actio  personalis  moritur 
cum  persona,  under  which  rule  are  included  all  actions  for  in- 
juries merely  personal.  Executors  and  administrators  are  the 
representatives  of  the  temporal  property— that  is,  the  debts  and. 
goods  of  the  deceased,  but  not  of  their  wrongs,  except  where! 
those  wrongs  operate  to  the  temporal  injury  of  their  personal! 
estate.  But  in  that  case  the  special  damage  ought  to  be  stated 
on  the  record,  otherwise  the  Court  cannot  intend  it.  If  this 
action  be  maintainable,  then  every  action  founded  on  an  implied 
promise  to  a  testator,  where  the  damage  subsists  in  the  previous 
personal  suffering  of  the  testator,  would  be  also  maintainable 
by  the  executor  or  administrator.  All  injuries  affecting  the  life 
or  health  of  the  deceased  ;  all  such  as  arise  out  of  the  unskilful- 
ness  of  medical  practitioners  ;  the  imprisonment  of  the  party 
brought  on  by  the  negligence  of  his  attorney  ;  all  these  would 
be  breaches  of  the  implied  promise  by  the  persons  employed  to 
exhibit  a  proper  portion  of  skill  and  attention.     We  are  not 


944  STUBBS  V.  THE  HOLYWELL  RAILWAY  CO.     [CHAP.  III. 

aware,  however,  of  any  attempt  on  the  part  of  the  executor  or 
administrator  to  maintain  an  action  in  any  such  case.  Where 
the  damage  done  to  the  personal  estate  can  be  stated  on  the 
record,  that  involves  a  different  question.  Although  marriage 
may  be  regarded  as  a  temporal  advantage  to  the  party  as  far  as 
respects  personal  comfort,  still  it  cannot  be  considered  in  this 
case  as  an  increase  of  the  individual  transmissible  personal 
estate,  but  would  operate  rather  as  an  extinction  of  it,  though 
that  ciicumstance  might  have  been  compensated  by  other  ad- 
vantages. Loss  of  marriage  may,  under  circumstances,  occa- 
sion a  strict  pecuniary  loss  to  a  woman,  but  it  does  not  neces- 
sarily do  so,  and  unless  it  be  expressly  stated  on  the  record  by 
allegation  the  Court  cannot  intend  it.  On  the  ground,  there- 
fore, that  the  present  allegation  imports  only  a  personal  injury, 
to  which  the  administrator  is  not  by  law,  nor  is  he  in  fact  shown 
to  be  privy,  we  are  of  opinion  that  in  the  absence  of  any  authori- 
ties this  administrator  cannot  maintain  this  action.  The  cases 
which  were  cited  on  the  other  side  do  not  appear  to  have  such 
an  immediate  bearing  on  the  question  as  to  require  that  they 
should  be  reviewed  and  commented  on.  We  are  of  opinion  that 
this  judgment  must  be  arrested,  and  of  course  the  motion  for  a 
new  trial  is  thereby  disposed  of. 


STUBBS,  Administrator,  v.  THE  HOLYWELL  RAILWAY 

COMPANY. 

In  the  Court  of  Exchequer,  June  14,  1867. 

[Reported  m  Law  Reports^  2  Exchequer,  311.] 

Declaration  for  money  payable  by  the  defendants  to  the 
plaintiff  as  administrator  of  William  Stubbs,  deceased,  for  work 
done  by  the  said  William  Stubbs,  in  his  lifetime  for  the  defend- 
ants, at  their  request,  and  fees,  etc.,  payable  in  respect  thereof, 
for  money  paid  by  the  said  William  Stubbs  in  his  lifetime  for 
the  defendants,  at  their  request,  and  for  money  due  on  accounts 
stated  between  the  said  William  Stubbs  in  his  lifetime  and  the 
defendants,  and  for  money  due  on  accounts  stated  between  the 
plaintiff  as  administrator  and  the  defendants. 

Pleas.      Never  indebted,  and  payment.     Issue  thereon. 

The  cause  was  tried  before  Mellor,  J.,  at  the  last  Liverpool 
spring  assizes,  when  the  following  facts  were  proved  : 

In  December,  1865,  William  Stubbs,  the  deceased,  was  ap- 
pointed consulting  engineer  by  the  defendants,  to  complete  the 


SEC.  II.]  STUBBS  v.  THE  HOLYWELL  RAILWAY  CO.  945 

construction  of  certain  works  on  their  line.  The  work  was  to 
be  completed  in  fifteen  months  from  December  5th,  and  the 
defendants  were  to  pay  Stubbs  ^500  as  his  fee  for  salary  for 
performing  it,  by  five  equal  quarterly  instalments.  He  was 
also  to  be  paid  his  travelling  expenses.  The  work  was  com- 
menced on  these  terms,  and  the  first  quarterly  payment  of  ^100 
was  made  in  March,  1866.  Stubbs  continued  in  his  employment 
for  two  quarters  more.  Soon  after  the  end  of  the  third  quarter, 
and  before  any  payment  beyond  the  ^100  had  been  made  to 
him,  he  died  intestate.  Less  than  three  fifths  of  the  whole 
work  had  been  done,  but  no  default  on  the  part  of  the  deceased 
was  proved.  The  plaintiff,  his  administrator,  now  sought  to 
recover  two  instalments  of  ^^loo  each  for  the  second  and  third 
quarters'  work,  and  also  ;£io  for  travelling  expenses  incurred 
by  the  deceased.  The  defendants  contended,  however,  that 
they  were  only  liable  on  a  quantum  meruit  for  the  amount  of 
work  actually  done  during  the  second  and  third  quarters.  The 
jury  found  the  actual  value  of  the  work  done  to  be  j£,^^o.  A 
verdict  was  entered  for  the  plaintiff  for  ^^210,  being  the  full 
amount  claimed — viz.,  ;!^2oo  for  the  two  quarterly  instalments 
and  ^10  for  travelling  expenses.  Leave  was  reserved  to  the 
defendants  to  reduce  the  damages  tO;^i6o,  on  the  ground  that 
the  death  of  Mr.  Stubbs  dissolved  the  contract,  and  that  the 
contract  being  dissolved,  the  plaintiff  was  only  entitled  to  re- 
cover on  a  quantum  meruit  for  the  work  actually  done. 

A  rule  nisi  having  been  obtained  accordingly, 

R.  G.  Williams  showed  cause. 

Holker  in  support  of  the  rule. 

Kelly,  C.B.  I  am  of  opinion  that  this  rule  should  be  dis- 
charged, and  that  the  plaintiff  is  entitled  to  a  verdict  for  j[^2\o. 
He  sues  as  the  administrator  of  a  person  named  Stubbs,  who 
had  in  his  lifetime  entered  into  a  contract  to  perform  certain 
work  for  the  defendants  in  fifteen  months  for  ;^5oo,  payable 
under  the  contract  in  five  quarterly  instalments  of  ^100  each. 
The  deceased,  it  appears,  performed  one  quarter's  work,  and 
at  the  close  of  that  quarter  received  p^ioo  in  payment.  He 
then  performed  his  work  during  the  second  and  third  quarters, 
and  at  the  expiration  of  the  third  quarter  became  entitled  to 
two  further  instalments  of  ^i^ioo  each.  These  were  due  to  him 
under  the  contract,  and  a  right  of  action  for  them  vested  in 
him  on  the  morning  of  September  6th,  1865.  Soon  afterward 
he  died,  while  these  instalments  remained  unpaid.  His  death, 
no  doubt,  dissolved  the  contract,  but  it  did  not  divest  his  rep- 
resentative of  the  right  of  action  which  had  already  accrued  to 
the    deceased,    and    which    survived    to    that    representative. 


946  STUBBS  V.  THE  HOLYWELL  RAILWAY  CO.     [CHAP.  IIL 

Whether  circumstances  existed  or  may  be  conceived  to  haye 
existed,  which  would  have  enabled  the  defendants  to  maintain 
a  cross  action  against  Stubbs,  or  even  against  his  administrator, 
is  immaterial  to  the  present  question.  Here  is  a  perfect  right 
of  action  vested  in  the  deceased  at  the  time  of  his  death  which 
survives  to  the  plaintiff.  He  is,  therefore,  entitled  to  recover, 
there  being  no  plea  alleging  that  the  deceased  did  not  perform 
his  work  nor  any  proof  of  non-performance. 

Martin,  B.  I  am  of  the  same  opinion.  The  law  on  the 
subject  is  clear  and  free  from  doubt.  Suppose  a  man  enters 
into  a  contract  to  do  a  certain  piece  of  work  for  a  certain  sum, 
then  if  he  die  before  he  completes  it,  he  can  recover  nothing, 
not  even  if  before  his  death  he  had  done  nine  tenths  of  it,  for 
the  contract  was  for  the  whole  work  and  not  for  nine  tenths  of 
it.  But  suppose  that  the  contract  is  for  the  performance  of  a 
certain  piece  of  work  for  a  certain  sum,  to  be  paid  at  the  rate, 
say,  of  ;£$o  a  month,  then  the  person  employed  earns  ;^5o  at 
the  end  of  each  successive  month.  It  is  true  that  if,  after  doing 
a  portion  of  the  work  he  refused  to  do  the  rest,  he  might  not 
be  able  to  recover,  because  he  could  not  prove  that  he  was  ready 
and  willing  to  perform  his  part  of  the  contract.  But  such  a 
case  as  the  present  has  no  analogy  with  that  of  a  refusal  by  the 
person  employed  to  continue  performance.  The  contract,  no 
doubt,  is  ended  by  the  death  of  Stubbs,  but  only  in  this  sense 
that  the  act  of  God  has  made  further  performance  impossible. 
The  man's  life  was  an  implied  condition  of  the  contract,  but 
the  fact  of  his  death  can  have  nothing  whatever  to  do  with  the 
payment  due  for  what  has  been  done,  with  what  has  been 
actually  earned  by  the  deceased.  The  contract  had,  it  is  true, 
an  implied  condition  that  he  should  live  for  fifteen  months. 
But  his  death  does  not  throw  back  his  representative  upon  the 
right  of  recovering  on  a  quantum  meruit  only.  He  can  recover 
the  stipulated  price,  due  to  the  deceased  when  he  died,  of  the 
work  the  deceased  had  actually  executed.  No  vested  right  of 
action  is  taken  away  by  death.  The  contract  is  at  an  end,  but 
it  is  not  "  rescinded,"  for  rescission  is  the  act  of  two  parties, 
not  of  one.  With  regard  to  the  remarks  quoted  from  Smith's 
Leading  Cases,  I  may  say,  with  the  greatest  respect  for  the 
learned  author,  that  some  of  the  positions  laid  down  by  him  in 
the  note  to  Cutter  v.  Powell,  in  his  leading  cases,  6th  ed.,  vol.  ii., 
p.  I,  are  not,  in  my  opinion,  fully  supported  by  the  authorities. 

Channell,,B.  I  am  of  the  same  opinion.  It  is  not  denied 
that  this  contract  was  one  of  personal  confidence.  That  being 
so,  on  the  death  of  Stubbs  it  was  at  an  end,  so  far  as  the  future 
was  concerned,  but  although  that  be  so,  we  are  not  to  prevent 


SEC.  II.]  DICKINSON    V.  CALAHAN'S   ADM'S.  947 

what  was  done  during  his  life,  under  the  contract,  from  having 
its  proper  effect.  This  is  not  the  case  of  a  contract  rescinded, 
but  of  a  contract  in  its  circumstances  conditional  on  the  life  of 
one  of  the  parties  to  it  continuing  for  a  certain  period.  On  his 
death  it  became  void.  It  became  null  for  the  future,  but  no 
more.  The  administrator  might  have  it  incumbent  on  him  in 
some  circumstances  to  show  that  the  deceased  was  ready  and 
willing  during  his  lifetime  to  continue  performance  of  the  con- 
tract, or  else  it  might  be  said  that  no  right  of  action  had  vested. 
But  in  this  case  there  is  no  pretence  for  saying  that  the  work 
was  not  actually  done  by  the  deceased.  A  right  of  action  for 
the  price  agreed  upon,  therefore,  vested  in  him,  and  I  can  see 
nothing  to  prevent  the  bringing  of  this  action  by  his  representa- 
tive to  enforce  that  right. 
Rule  discharged. 


DICKINSON  V.  CALAHAN'S  Administrators. 

In  the  Supreme  Court  of  Pennsylvania,  1852. 

[Reporied  hi  19  Pennsylvania  State  Reports  227.] 

Error  to  the  Common  Pleas  of  Lycoming  Couniy. 

Two  suits  were  brought  by  J.  H.  Woodruff  and  D.  E.  Calahan, 
administrators  of  the  estate  of  William  Calahan,  deceased, 
against  Samuel  Dickinson,  executor  of  the  will  of  D.  B.  R. 
Dickinson,  deceased  ;  the  one  in  covenant,  and  the  other  in 
assu7npsit,  for  the  same  cause  of  action — viz.,  to  recover  the  value 
of  136,678  feet  of  pine  lumber,  at  $6  per  thousand,  and  interest 
thereon  from  April  loth,  1842. 

On  February  26th,  1838,  William  Calahan  made  an  agreement 
in  writing,  under  seal,  with  D.  B.  R.  Dickinson,  to  sell  to  him 
all  the  white  pine  lumber  that  he  could  make  at  his  saw-mill, 
near  to  the  first  fork  of  Pine  Creek,  Lycoming  County,  from 
that  time  till  June  ist,  1843  ;  for  which  Dickinson  agreed  to 
pay  to  Calahan  $6  per  thousand  feet,  board  measure,  in  cash, 
when  taken  away  ;  the  lumber  to  be  estimated  in  the  rafts.  A 
further  agreement  was  made  as  a  part  of  the  contract,  but  not 
reduced  to  writing,  that  Calahan  should  deliver,  on  an  average, 
during  the  time  above  specified,  at  least  300,000  feet  of  lumber 
per  year.  An  agreement  was  entered  into  on  the  trial  that  the 
jury  should  pass  upon  the  merits  of  the  demand  and  defence, 
without  regard  to  the  form  of  the  action,  and  in  case  the  vcr- 


g^S  UICKIN'SOxN'   7'.  CALAIIAI>J'S   ADM's.  [chap.  III. 

diet  and  judgment  be  for  the  plaintiff  in  the  action  of  covenant, 
then  the  action  of  assumpsit  to  be  discontinued,  etc. 

In  1839  Calahan  delivered  under  the  contract  42,920  feet.  In 
that  year — viz.,  in  August,  1839,  Calahan  sold  his  mill,  but  he 
obtained  possession  of  it  again  in  1841,  and  in  that  year  deliv- 
ered about  70,000  feet  under  the  contract.  This  lumber  was 
paid  for.  On  May  6th,  1841,  Dickinson  died,  and  on  January 
2Sth,  1842,  Calahan  died.  On  April  loth,  1842,  the  executor  of 
the  will  of  Dickinson  received  from  the  administrators,  plain- 
tiffs in  the  suit,  136,678  feet  of  boards,  to  apply  on  the  contract. 
For  the  amount  of  this  lumber,  $820.06,  and  interest,  these  suits 
v/ere  brought. 

As  a  defence  the  defendant  alleged  that  the  plaintiffs  had  not 
complied  with  the  contract.  That  in  August,  1848,  Calahan 
sold  his  saw-mill  to  Archer,  thus  putting  it  out  of  his  power  to 
comply  ;  that  Calahan,  in  his  lifetime,  and  his  administrators 
after  his  death,  refused  to  deliver  the  quantity  of  lumber  called 
for  by  the  contract  ;  that  the  mill  was  capable  of  cutting  400,000 
feet  per  year,  and  that  the  price  of  lumber  at  the  mill  on  Pine 
Creek  during  the  five  years  would  average  $9  per  thousand,  at 
which  rate  defendant  suffered  a  loss  of  $3  per  thousand  on  the 
lumber  to  which  it  was  alleged  he  was  entitled. 

Anthony,  J.,  observed,  inter  alia,  that  no  provision  appears  to 
have  been  made  for  Archer  to  supply  Dickinson  with  lumber 
under  the  contract  between  Calahan  and  Dickinson.  A  ques- 
tion then  arises  with  the  jury,  whether  this  sale  and  de- 
livery of  the  saw-mill  by  Calahan  to  Archer  in  August,  1838, 
was  not  entirely  incompatible  with  the  contract  on  his  part.  If 
Calahan  broke  the  contract  during  his  lifetime,  then  his  admin- 
istrators would  only  be  liable  in  their  representative  capacity 
on  th^e  ground  of  a  breach  of  the  contract  by  Calahan,  tlie  in- 
testate, in  his  lifetime,  and  the  responsibility  of  his  estate  for 
the  damage  sustained.  But  it  is  alleged  by  the  counsel  for  the 
plaintiffs,  that  although  Calahan,  during  his  lifetime,  did  not 
deliver,  on  an  average,  300,000  feet  of  boards  per  annum,  the 
defendants,  by  accepting  of  112,920  feet,  waived  their  right  to 
receive  more,  and  are  not  entitled  to  recover  any  damages, 
although  the  jury  may  believe  the  contract  was  impaired  by 
Calahan. 

After  a  careful  examination  of  the  numerous  authorities  which 
have  been  cited  by  the  counsel,  the  Court  instruct  you  that 
under  the  agreement  of  the  parties  to  try  the  cause  on  its  merits, 
it  will  be  proper  for  the  jury  to  allow  the  plaintiffs  the  amount 
to  which  they  are  entitled  for  the  136,678  feet  of  boards,  at 
$6  per  thousand  ;  but  if  you  believe  William  Calahan  violated 


SEC.  II.]  DICKINSON    V.  CALAMAN'S    ADM'S.  949 

the  agreement  in  his  lifetime,  by  selling  the  saw-mill  some  few 
months  afterward  to  Archer,  and  by  other  acts  which  show  an 
inability  on  his  part  to  perform  and  comply  with  his  agreement, 
and  a  manifest  intention  not  to  carry  it  into  effect  ;  and  that  he 
afterward,  a  short  time  before  his  death,  became  owner  again 
of  the  saw-mill,  and  delivered  altogether  about  113,000  feet  of 
boards  to  Dickinson  or  his  agent,  under  the  contract,  you  have 
a  right  to  ascertain  the  damages  which  the  defendant,  D.  B.  R. 
Dickinson,  sustained  in  his  lifetime,  on  account  of  the  said 
Calahan's  violation  of  the  contract,  and  deduct  the  same  from 
the  pi  ice  of  the  boards,  and  if  you  are  of  the  opinion  that  the 
amount  exceeds  the  value  of  the  boards,  you  may  certify  what 
sum  you  find  for  the  defendant. 

Various  points  were  submitted  on  the  part  of  the  plaintiffs. 
The  first  point  and  answer  were  as  follows  : 

First  point.  That  the  contract  between  Calahan  and  Dickin- 
son is  a  personal,  executor}''  contract,  and  does  not  extend  to 
the  executors  and  administrators  of  the  parties,  and  as  both 
parties  died  before  the  time  limited  in  tlie  contract  for  the  final 
execution  or  performance  of  the  same,  the  administrators  of 
Calahan  are  not  in  law  compellable  to  perform  the  same,  and 
are  therefore  not  legally  liable  for  the  non-performance  of  said 
contract. 

Answer.  The  Court  answer,  that  although  the  contract  de- 
clared on  and  in  evidence  is  a  personal  executory  contract,  and 
both  parties  thereto  died  before  the  time  agreed  on  for  the  final 
termination  thereof,  yet,  if  during  the  lifetime  of  William  Cala- 
han he  violated  the  contract  in  such  manner  as  disabled  him 
from  a  compliance  therewith,  his  administrators  would  be  liable 
as  representatives  of  his  estate. 

Fifth  point.  That  the  lumber  delivered  to  the  defendant  in 
the  spring  of  1842  formed  part  of  the  assets  of  the  estate  of 
William  Calahan,  deceased  ;  that  the  cause  of  action  in  this 
suit  arose  subsequent  to  the  death  of  William  Calahan,  and  the 
defendant  cannot  set  off  a  debt  due  to  him  from  unliquidated 
damages  arising  from  covenant. 

Answer.  The  Court  answer  that  under  the  declaration  filed 
in  this  cause,  as  well  as  in  the  action  of  assumpsit^  the  plaintiff 
claims  the  amount  due,  according  to  the  contract,  and  relies  for 
a  recovery  by  virtue  of  the  contract  of  February  26th,  1838, 
between  William  Calahan  and  D.  B.  R.  Dickinson.  As  the 
claim,  therefore,  is  in  the  plaintiffs'  representative  capacity  as 
administrators,  and  the  defendant  was  sued  in  his  representa- 
tive capacity  as  executor,  although  the  lumber  was  delivered 
and  received  after  the  death  of  both   parties,  yet  as  the  receipt 


950 


DICKINSON   V.  CALAMAN'S  ADM'S.  [chap.  IU. 


for  the  lumber  shows  on  its  face  that  it  was  to  be  applied  to  the 
contract  between  William  Calahan  and  D.  B.  R.  Dickinson,  the 
damages,  if  any,  which  were  sustained  by  said  Dickinson,  in 
his  lifetime,  by  reason  of  a  violation  of  the  contract  by  William 
Calahan,  would  be  an  equitable  defence  to  the  amount  thereof 
against  plaintiffs'  claim  in  this  suit. 

September  12th,  1849,  verdict  for  the  plaintiffs  for  $1185.25. 

It  was  assigned  for  error  inter  alia.  5.  The  Court  erred  iti 
savino-,  "  A  question  then  arises  with  the  jury  whether  this  sale 
and  delivery  of  the  saw-mill  by  Calahan  to  Archer  in  August, 
1838,  was  not  entirely  incompatible  with  a  compliance  with  the 
contract."  The  Court  should  have  instructed  the  jury  on  this 
as  a  matter  of  law. 

6.  There  was  error  in  charging  the  jury  that,  "  If  Calahan 
broke  the  contract  during  his  lifetime,  then  his  administrators 
would  only  be  liable  in  their  representative  capacity  on  the 
ground  of  a  breach  of  the  contract  by  Calahan,  the  intestate,  in 
his  lifetime,"  etc. 

7  The  Court  erred  in  their  answer  to  the  points  submitted 
by  plaintiffs'  counsel. 

J.  Armstrong  and  W.  H.  Armstrong  for  the  plaintiffs  in  error. 

Maynard  3.Vi.A  Willard  iox  the  defendants  in  error. 

The  opinion  of  the  Court,  filed  September  28th,  was  delivered 
by 

LowRiE,  J.  It  seems  to  us  very  doubtful  whether  the  oral 
contract  could  be  rightly  proved  by  the  evidence  that  was  sub- 
mitted to  the  jury,  but  admit  that  it  could.  The  one  party,  a 
lumber  manufacturer,  agreed  to  sell  to  the  other,  a  lumber 
merchant,  all  the  lumber  to  be  sawed  at  his  mill  during  five 
years,  and  that  the  quantity  should  be  equal  on  an  average  to 
300,000  feet  in  a  year,  without  stipulating  for  any  given  quan- 
tity in  any  one  year,  and  the  lumber  was  to  be  paid  for  as  de- 
livered. Before  the  five  years  had  expired  both  parties  died, 
and  now  the  representatives  of  the  vendee  seek  to  hold  those 
of  the  vendor  bound  to  perform  the  contract,  and  to  set  off 
damages  for  the  breach  of  it  against  a  claim  for  part  of  the 
lumber  delivered. 

It  will  be  seen  that  in  thus  stating  the  question  we  set  aside 
the  alleged  breach  in  the  lifetime  of  Calahan,  and  we  do  this 
because  the  Court  properly  instructed  the  jury  that  under  such 
a  contract  Calahan  was  guilty  of  no  breach  in  not  manufactur- 
ing the  full  average  quantity  in  his  lifetime,  and  left  it  to  them 
to  say  whether  in  his  lifetime  he  had  committed  any  other 
manner  of  breach.  The  point  in  controversy  may  be  stated 
thus  :  Where  a  lumber  manufacturer  contracts  with  a  lumber 


SEC.  II.]  DICKINSON   V.  CALAHAN'S  ADM'S.  95 1 

merchant  to  sell  liim  a  certain  quantity  of  lumber,  to  be  made 
at  his  mill  during  five  years,  for  which  he  is  to  be  paid  as  the 
lumber  is  delivered,  and  he  dies  before  the  time  has  elapsed, 
are  his  administrators  bound  to  fulfil  the  contract  for  the  re- 
mainder of  the  time  ? 

No  one  can  trace  up  this  branch  of  the  law  very  far  without 
becoming  entangled  in  a  thicket  from  which  he  will  have  diffi- 
culty in  extricating  himself.  Very  much  of  the  embarrassment 
arises  from  the  fact  that  the  liability  of  executors  and  adminis- 
trators has  been  often  made  to  depend  more  upon  the  forms  of 
action  than  upon  the  essential  relations  of  the  parties,  as  will 
be  seen  by  reference  to  the  books  :  Piatt  on  Covenants,  453  ; 
2  Wms.  Executors,  1060  ;  Viner's  Ab.  titles  "  Covenants" 
D.  E.,  and  "  Executors"  H.  a.  ;  Touchstone,  17S.  The  sim- 
plicity and  symmetry  of  the  law  would  certainly  be  greatly  in- 
creased, and  its  justice  better  appreciated  if  in  all  cases  where 
the  law  undertakes  the  administration  of  estates,  as  in  cases  of 
insolvency,  bankruptcy,  lunacy,  and  death  the  rules  of  distribu- 
tion were  the  same. 

The  contract  in  this  case  established  a  defined  relation,  a  re- 
lation depending  for  its  origin  and  extent  upon  the  intention  of 
the  parties.  The  question  is,  Do  the  administrators  of  a  de- 
ceased party  succeed  to  that  relation  after  the  death  of  the 
party,  or  was  it  dissolved  by  that  event  ?  On  this  question  the 
books  give  us  an  uncertain  light.  In  Hyde  v.  Windsor,  Cro. 
Eliz.  552,  it  is  said  that  an  agreement  to  be  performed  by  the 
person  of  the  testator,  and  which  his  executor  cannot  perform, 
does  not  survive.  But  here  the  uncertainty  remains,  for  the 
acts  which  an  executor  cannot  perform  are  undefined.  It  rec- 
ognizes the  principle,  however,  that  an  executor  does  not  fully 
succeed  to  the  contract  relations  of  his  testator. 

The  case  of  Robson  v.  Drummond,  2  Barn.  &  Aid.  303,  22 
Eng.  C.  L.  Rep.  81,  is  more  specific,  for  in  that  case  it  was 
held  that  an  agreement  by  a  coachmaker  to  furnish  a  carriage 
for  five  years  and  keep  it  in  repair  was  personal,  and  could  not 
be  assigned,  and  executors  and  administrators  are  assigns  in 
Law  (Hob.  9  ;  Cro.  Eliz.  757  ;  Latch,  261  ;  Wentw.  Executors, 
100)  ;  that  being  a  general  term,  applying  to  almost  all  owners 
of  property  or  claims,  whether  their  title  be  derived  by  act  of 
law  or  of  the  parties.  And  it  is  no  objection  that  one  may  take 
as  executor  or  administrator  in  certain  cases  where  the  English 
laws  of  maintenance  and  forms  of  action  would  not  allow  him 
to  take  as  assignee  in  fact,  for  those  laws  do  not  extend  to  such 
a  case,  and  they  have  no  application  here. 

In  Quick  v.  Ludborrow,  3  Bulst.  29,  it  is  said  that  executors 


952  DICKINSON  V.  calahan's  adm's.         [chap.  IH. 

are  bound  to  perform  their  testator's  contract  to  build  a  house  ; 
but  the  contrary  is  said  in  VVentw.  Executors,  124,  Vin.  Ab., 
"  Covenant,"  E.  pi.  12,  to  have  been  declared  in  Hyde  v.  Wind- 
sor, though  we  do  not  find  it  in  the  regular  reports  of  the  case. 
5  Co.  24  ;  Cro.  Eliz.  552.  But  these  are  both  mere  dicta.  The 
same  principle  is  repeated  in  Touchstone,  178,  yet  even  there  a 
lessee's  agreement  to  repair  is  not  so  construed,  and  in  Latch 
Rep.  261,  the  liability  of  executors  on  a  contract  to  build  is  for 
a  breach  in  the  testator's  lifetime.  In  Cook  v.  Colcroft,  2  Bl. 
Rep.  856,  a  covenant  not  to  exercise  a  particular  trade  was  held 
to  establish  a  mere  personal  relation  and  not  to  bind  executors, 
and  the  contrary  is  held  in  Hill  v.  Hawes,  Vin.  Ab.  title  "  Ex- 
ecutors," Y.  pi.  4.  And  so  executors  and  administrators  stand 
on  the  same  footing  with  assignees  in  fact  with  regard  to  ap- 
prentices, and  contracts  of  this  nature  are  held  not  to  pass  to 
either,  because  they  constitute  a  mere  personal  relation,  and 
are,  therefore,  not  transferable.  2  Stra.  1266  ;  4  Ser.  &  R. 
109;  I  M.  172;  19  Johns.  113;  I  Rob.  519;  12  M.  553,650; 
5  Co.  97. 

The  case  most  nearly  resembling  this  is  Wentworth  v.  Cock,  • 
10  Ad.  &  El.  42,  37  Eng.  C.  L.  R.  t^t,,  where  a  contract  to  de- 
liver a  certain  quantity  of  slate,  at  stated  periods,  was  held  to 
bind  the  executors.  This  case  was  decided  without  delibera- 
tion, and  with  but  little  argument  on  the  part  of  the  executors. 
The  plaintiff  relied  on  the  case  of  Walker  v.  Hull,  i  Lev.  177, 
where  executors  were  held  bound  to  supply  the  place  of  the 
testator  in  teaching  an  apprentice  his  trade.  But  that  case  had 
long  ago  been  denied  in  England  (2  Stra.  1266),  and  is  rejected 
here.  Commonwealth  v.  King,  4  Ser.  &  R.  109.  This  last  case 
treats  the  contract  as  a  mere  personal  one,  that  is  dissolved  by 
death,  and  regards  as  absurd  the  doctrine  in  Wadsworth  v.  Gay, 
I  Keb.  820,  and  i  Sid.  216,  that  the  executors  are  bound  to 
maintain  the  apprentice  while  he  is  discharged  from  duty. 

But  the  authority  principally  relied  on  by  the  counsel  in 
Wentworth  v.  Cock  is  the  Roman  law.  Code  Just.  8,  t,%,  15,  and 
the  commentary  on  it  in  i  Pothier  on  Oblig.  639.  Yet  there 
are  few  subjects  in  the  Roman  law  wherein  its  unlikeness  to 
ours  is  more  marked  than  in  the  matter  of  succession  to  per- 
sonal estate,  and  therefore  its  example  herein  is  almost  sure  to 
mislead.  The  difference  is  sufficiently  indicated,  when  we 
notice  that  the  Roman  executor  was  in  all  cases  either  the  testa- 
mentary or  the  legal  heir,  and  if  he  accepted  the  estate  he  was 
considered  as  standing  exactly  in  the  place  of  the  decedent, 
and  was  of  course  bound  for  all  his  legal  liabilities,  including 
even  many  sorts  of  offences,  whether  the  estate  was  sufficient 


SEC.  IT.]  DICKINSON   7'.  CALAIIAN'S   ADM'S.  953 

or  not.  He  was  bound  as  heir  and  by  reason  of  the  estate  given 
to  him,  and  not  as  one  appointed  to  settle  up  the  estate.  If 
the  heir  was  unwilling  to  accept  the  estate  upon  these  terms  it 
became  vacant,  and  the  praetor  appointed  curators  to  administer 
for  the  benefit  of  all.  It  would  seem  strange  that  such  curators 
should  be  bound  to  carry  on  the  business  of  the  deceased,  where 
they  are  appointed  to  settle  it  up,  yet  how  it  really  was  does 
not  appear.     Dig.  427. 

Our  statute  recognizes  the  duty  of  the  executor  and  adminis- 
trator to  pay  all  debts  owing  by  the  deceased  at  the  time  of  his 
death,  and  this  is  the  common  principle.  In  another  clause  it 
makes  the  executor  and  administrator  liable  to  be  sued  in  any 
action,  except  for  libels  and  slanders  and  wrongs  done  to  the 
person,  which  might  have  been  maintained  against  the  de- 
cedent if  he  had  lived.  But  this  furnishes  us  no  aid  in  this 
case,  and  was  not  intended  to.  Its  purpose  is  to  enlarge  and 
define  the  rights  of  action  which,  existing*  against  the  individ- 
ual, should  survive  against  his  estate.  Not  contract  relations 
and  duties,  but  remedies  for  injuries  already  done  are  declared 
to  survive.  If  the  decedent  committed  no  breach  of  contract  he 
was  liable  to  no  action  when  he  died,  and  this  law  cannot  apply. 
We  are  then  without  any  well-defined  rule  of  law  directly 
applicable  to  this  case,  and  are  therefore  under  the  necessity  of 
deducing  the  rule  for  ourselves.  The  elements  from  which  this' 
deduction  is  to  be  made  are  the  contract  itself,  the  ordinary 
principles  and  experience  of  human  conduct,  the  decisions  in 
analogous  cases,  and  the  nature  of  the  office  of  administrator. 

We  repeat  the  question,  Does  such  a  contract  establish  any- 
thing more  than  a  personal  relation  between  the  parties  ?  This 
is  a  mere  question  of  construction,  depending  upon  the  inten- 
tion of  the  parties  (Hob.  9  ;  Yelv.  9  ;  Cro.  Jac.  282  ;  i  Bing. 
225,  8  Eng.  C.  L.  R.  307),  unless  the  intention  be  such  as  the 
law  will  not  enforce.  Is  it  probable  that  either  party  intended 
to  bind  his  executors  or  administrators  to  such  a  relation  ? 
The  contract  does  not  say  so,  and  we  think  it  did  not  mean  it, 
for  it  would  involve  the  intention  that  the  administrators  of 
one  shall  be  lumber  merchants  and  those  of  the  other  sawyers. 
The  character  of  the  contract  demands  not  such  a  construction, 
for  each  delivery  under  it  is  necessarily  of  complete  and  inde- 
pendent articles,  and  each  delivery  was  to  be  at  once  a  finished 
work  on  each  side.  There  may  be  cases  when  it  is  necessary 
that  the  executor  or  administrator  shall  complete  a  work  already 
begun  by  the  decedent,  and  then  they  may  recover  in  their 
representative  character,  i  Crompt.  &  Mees.  403  ;  3  Mees.  & 
W.  350  ;  2  Mees.   &  W.    190  ;  3  W.  &  Ser.  72.     But  here  every 


954  DICKINSON    V.   CALAHAN'S   ADM'S.  [chap.   III. 

act  of  both  parties  was  complete  in  itself.  From  the  contract 
itself,  and  from  the  ordinary  principles  of  human  conduct,  we 
infer  that  neither  party  intended  the  relation  to  survive. 

A  contrary  view  is  incompatible  in  the  present  case  with  the 
office  of  administrator,  for  it  would  require  him  to  have  the 
possession  of  the  saw-mill  in  order  to  fulfil  the  contract,  and 
yet  administrators  have  nothing  to  do  with  the  real  estate,  un- 
less the  personal  estate  is  insufficient  to  pay  the  debts,  and  there- 
fore they  cannot  perform.  It  is  incompatible  with  the  general 
duties  of  administrators  in  that  it  would  require  them  to  carry 
on  the  business  left  by  the  decedent  instead  of  promptly  settling 
it  up  ;  it  would  require  him  to  satisfy  claims  of  this  character 
within  a  year  or  begin  to  do  so  while  the  law  forbids  him  to  do 
so  except  at  his  own  risk,  and  it  might  hang  up  the  estate  to  a 
very  protracted  period.  We  are  therefore  forbidden  to  infer 
such  an  intention,  and  possibly  to  enforce  it  even  if  it  appeared. 

The  inference  is  further  forbidden  by  the  spirit  of  analogous 
cases.  It  would  seem  absurd  to  say  that  the  administrator  of  a 
physician,  or  author,  or  musician  could  be  compelled  to  per- 
form their  professional  engagements  no  matter  how  the  contract 
might  be  expressed.  The  idea  is  ludicrous.  Yet  it  has  been 
supposed  that  an  administrator  might  take  the  place  of  his  in- 
testate in  teaching  an  apprentice  to  be  a  surgeon,  or  saddler,  or 
•shoemaker,  or  mariner,  or  husbandman,  or  in  demanding  ser- 
vices from  an  ordinary  laborer,  but  the  idea  was  rejected  by  the 
Court.  On  what  ground  ?  Most  certainly  not  that  no  one  else 
could  be  got  to  take  the  place  of  the  decedent,  but  on  the 
ground  that  no  such  substitution  was  intended  by  the  contract, 
together  perhaps  with  the  feeling  of  the  incompatibility  of  such 
a  substitution  with  the  duties  imposed  by  law  upon  adminis- 
trators. The  law  trusts  people  to  settle  up  estates  on  account 
of  their  honesty  and  general  business  capacity,  and  not  for  any 
.peculiar  scientific  or  artistic  skill,  and  the  State  does  not  hold 
itself  bound  to  furnish  such  abilities.  Some  people  may  sup- 
pose that  it  requires  no  great  skill  to  manufacture  boards  if 
one  has  the  material  and  machinery,  but  still  we  cannot  suppose 
that  the  deceased  was  contracting  for  any  kind  of  skill  in  his 
administrators.  For  these  reasons  the  Court  below  was  right 
in  declaring  in  substance  that  the  administrators  were  liable 
only  for  breaches  committed  by  the  intestate  in  his  lifetime, 
and  the  same  principle  applies  to  the  death  of  either  party. 
These  views  set  aside  some  of  the  exceptions  as  entirely  unim- 
portant, and  in  the  others  we  discover  no  error,  and  no  principle 
that  calls  for  any  special  remarks. 

Judgment  affirmed. 


SEC.  II.]  FARROW   V.    WILSON   AND    WIFE.  955 

FARROW  V.   WILSON  and   WIFE,   Administratrix,  etc. 

In  the  Court  of  Common  Pleas,  July  5,  1869. 

[Reported  zn  Law  Reports  4,  Common  Pleas,  744.] 

Declaration  that  in  consideration  that  the  plaintiff  would 
enter  into  the  service  of  one  Price  Pugh  and  serve  him  in  the 
capacity  of  farm  bailiff  at  the  wages  of  15^-.  per  week,  together 
with  the  benefit  of  certain  bonuses  and  of  a  certain  residence  in 
a  farmhouse  until  the  service  should  be  determined  as  therein- 
after mentioned.  Price  Pugh  promised  the  plaintiff  to  retain 
him  in  his  service  until  the  expiration  of  six  months  after  notice 
given  by  Price  Pugh  or  the  plaintiff  to  the  other  of  them  to  put 
an  end  to  such  service,  or  that,  in  case  Price  Pugh  should  put 
an  end  to  such  service  without  such  notice,  he  should  pay  to 
the  plaintiff  such  wages  at  the  rate  aforesaid  for  the  six  months 
from  the  time  of  the  end  of  such  service  ;  that  the  plaintiff 
accordingly  entered  into  the  service  of  Price  Pugh,  and  con- 
tinued therein  .until  the  death  of  Price  Pugh,  and  had  always 
been  ready  and  willing  to  continue  in  the  service  of  his  admin- 
istratrix in  the  capacity  and  on  the  terms  aforesaid,  of  which 
the  defendants  always  had  notice  ;  yet  that  the  defendants 
wrongfully  dismissed  the  plaintiff  from  the  said  service  without 
such  notice  as  aforesaid,  and  without  paying  the  plaintiff  such 
six  months'  wages  as  aforesaid,  whereby,  etc. 

Demurrer  and  joinder. 

Bridge  in  support  of  the  demurrer. 

Cooper  in  support  of  the  declaration. 

The  judgment  of  the  Court  (Willes  and  Montague  Smith,  JJ.) 
was  delivered  by 

Willes,  J.  In  this  case  our  judgment  is  for  the  defendants. 
Generally  speaking,  contracts  bind  the  executor  or  adminis- 
trator, though  not  named.  Where,  however,  personal  consid- 
erations are  of  the  foundation  of  the  contract,  as  in  cases  of 
principal  and  agent  and  master  and  servant,  the  death  of  either 
party  puts  an  end  to  the  relation  ;  and,  in  respect  of  service 
after  the  death,  the  contract  is  dissolved,  unless  there  be  a 
stipulation  express  or  implied  to  the  contrary.  It  is  obvious 
that,  in  this  case,  if  the  servant  had  died,  his  master  could  not 
have  compelled  his  representatives  to  perform  the  service  in  his 
stead  or  pay  damages,  and  equally  by  the  death  of  the  master 
the  servant  is  discharged  of  his  service,  not  in  breach  of  the 
contract,  but  by  implied  condition. 

Judgment  for  the  defendants. 


956  LACY   V.    GETMAN.  [CHAP.  III. 


THOMAS    LACY,    Respondent,    v.    SOPHRONIA    A.    GET- 
MAN,  AS  Executrix,   etc..  Appellant. 

In  the  Court  of  Appeals  of  New  York,  January   14,  1890. 
\Reported  in  119  New  York  Reports  109.  J 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme 
Court  in  the  fourth  judicial  department,  entered  upon  an  order 
made  July  2d,  1888,  which  affirmed  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  verdict,  and  affirmed  an  order  denying 
a  motion  for  a  new  trial. 

The  nature  of  the  action  and  the  facts  are  sufficiently  stated 
in  the  opinion. 

Elon  R.  Brown  for  appellant. 

W.  A.  Nims  for  respondent. 

Finch,  J.  The  relation  of  master  and  servant  is  no  longer 
bounded  by  its  original  limits.  It  has  broadened  with  the 
advance  of  civilization  until  the  law  recognizes  its  existence  in 
new  areas  of  social  and  business  life,  and  yields  in  many  direc- 
tions to  the  influence  and  necessities  of  its  later  surroundings. 
When,  therefore,  it  is  said  generally,  as  the  commentators 
mostly  agree  in  saying,  that  the  contract  relations  of  principal 
and  agent,  and  of  master  and  servant,  are  dissolved  by  the  death 
of  either  party,  it  is  very  certain  that  the  statement  must  be 
limited  to  cases  in  which  the  relation  may  be  deemed  purely 
personal,  and  involves  neither  property  rights  nor  independent 
action.  Beyond  that  a  further  limitation  of  the  doctrine  is 
asserted,  which  approaches  very  near  to  its  utter  destruction, 
and  is  claimed  to  be  the  result  of  modern  adjudication.  That 
limitation  is  that  the  rule  applies  only  to  the  contract  of  the 
servant,  and  not  to  that  of  the  master,  and  not  at  all,  unless 
the  service  employed  is  that  of  skilled  labor  peculiar  to  the 
capacity  and  experience  of  the  servant  employed,  and  not  the 
common  possession  of  men  in  general  ;  and  it  is  proposed  to 
adopt  as  a  standard  or  test  of  the  limitation  an  inquiry  in  each 
case  whether  the  contract  on  the  side  of  the  master  can  be  per- 
formed after  his  death  by  his  representatives  substantially,  and 
in  all  its  terms  or  requirements,  or  cannot  be  so  performed 
without  violence  to  some  of  its  inherent  elements. 

The  agitation  of  that  question  has  kept  the  present  case  pass- 
ing like  a  shuttle  between  the  trial  and  the  appellate  courts, 
until  it  has  been  tried  four  times  at  the  circuit  and  reviewed 
four  times  at  General  Term,  and  at  last  has  been  sent  here  in 
the  hope  of  securing  a  final  repose. 


SEC.  II.]  L.VCV    1'.    GET.M.VX.  957 

The  facts  are  few  and  undisputed  on  this  appeal.  The  plain- 
tiff, Lacy,  contracted  orally  witli  defendant's  testator,  McMahan, 
to  work  for  the  latter  upon  his  farm,  doing  its  appropriate  and 
ordinary  work  for  a  period  of  one  year  at  a  compensation  of 
^200.  Lacy  entered  upon  the  service  in  March,  doing  from  day 
to  day  the  work  of  the  farm  under  the  direction  of  its  owner, 
until  about  the  middle  of  July,  when  McMahan  died.  By  his 
will  he  made  the  defendant  executrix,  but  devised  and  be- 
queathed to  his  widow  a  life  estate  in  the  farm,  and  the  use  and 
control  of  all  his  personal  property  whatsoever  in  the  house 
and  on  the  farm,  during  the  term  of  her  natural  life.  Lacy 
knew  in  a  general  way  the  terms  of  the  will.  He  testifies  that 
he  knew  that  it  gave  to  the  widow  the  use  of  the  farm,  and  that 
she  talked  with  him  about  the  personal  property.  It  is  admitted 
that  the  executrix  did  not  hire  or  employ  him,  but  he  continued 
on  to  the  close  of  the  year,  doing  the  farm  work  under  the 
direction  of  the  widow  until  the  end  of  his  full  year.  He  sued 
the  executrix  upon  his  contract  with  the  testator,  and  has  re- 
covered the  full  amount  of  his  year's  wages.  From  that  de- 
cision the  executrix  appeals,  claiming  that  the  judgment  should 
have  been  limited  to  the  proportionate  amount  earned  at  the 
death  of  McMahan,  and  that  the  death  of  the  master  dissolved 
the  contract. 

It  is  obvious  at  once  that  an  element  has  come  into  the  case 
as  now  presented,  which  was  not  there  when  the  General  Term 
first  held  that  the  contract  survived.  It  now  appears  that  the 
executrix  could  not  have  performed  her  side  of  the  contract  at 
all  after  the  death  of  McMahan,  by  force  of  her  official  author- 
ity, because  she  had  neither  the  possession  of  the  farm  nor  per-, 
sonal  property  upon  it,  and  no  right  to  such  possession  during 
the  life  of  the  widow.  She  had  no  power  to  put  her  servant 
upon  the  land,  or  employ  him  about  it,  and  in  her  representa- 
tive character  she  had  not  the  slightest  interest  in  his  service, 
and  could  derive  no  possible  benefit  from  it.  The  plaintiff's 
labor,  after  the  death  of  McMahan,  was  necessarily  on  the  farm 
of  the  widow,  by  her  consent,  for  her  benefit,  and  under  her 
direction  and  control,  and  equitably  and  justly  should  be  a 
charge  against  her  alone.  The  test  of  power  to  perform  on  the 
part  of  the  personal  representative  of  the  deceased  fails  in  the 
emergency  presented  by  the  facts,  except  possibly  upon  proof 
of  the  consent  of  the  widow. 

We  have  then  the  peculiar  case  of  a  contract  made  to  work 
for  McMahan  and  under  his  direction  and  control,  which  could 
not  be  performed  because  of  his  death,  transmuted  into  a  con- 
tract to  work  for  Mrs.  Getman  upon  a  farm  which  she  did  not 


958  LACV   r.    GETMAN.  [cHAP.  III. 

possess  and  had  no  right  to  enter,  and  performed  by  working 
for  the  widow  and  under  her  direction  and  control  alone,  and 
this  because  of  the  supposed  rule  that  the  contract  survived  the 
death  of  the  master  and  remained  binding  upon  his  personal 
representatives. 

It  is  true  that  some  interest  in  the  personal  property  on  the 
farm  is  claimed  to  have  vested  in  the  executrix,  notwithstand- 
ing the  terms  of  the  will,  and  the  inventory  filed  by  her  is  ap- 
pealed to,  and  the  necessity  of  a  resort  to  the  personal  property 
with  which  to  pay  debts.  There  is  no  proof  that  the  testator 
owed  any  debts,  and  the  inventory  covers  nothing  as  to  which 
Lacy's  labor  was  requisite  or  necessary,  except  possibly  some 
corn  on  the  ground  valued  at  $i8.  All  the  grain  inventoried 
was  in  the  barn,  needing  only  to  be  threshed,  and  must  be 
assumed  to  have  been  there  when  testator  died  ;  and  the  other 
property  consisted  of  farm  tools  and  a  cow  and  horse,  to  the 
use  of  which  the  widow  was  entitled  and  which,  if  sold  to  pay 
possible  debts,  would  have  left  the  servant  without  means  of 
doing  his  work  and  with  nothing  to  do  unless  for  the  widow. 
So  that  the  bald  question  is  presented  whether  the  contract  sur- 
vived the  testator's  death  and  bound  his  executrix,  who  v/as 
without  power  or  authority  of  her  own  to  perform,  and  had  no 
interest  in  performance. 

It  seems  to  be  conceded  that  the  death  of  the  servant  dis- 
solves the  contract.  Wolfe  7>.  Howes,  20  N.  Y.  197  ;  Spauld- 
ing  V.  Rosa,  71  N.  Y.  40  ;  Devlin  7'.  Mayor,  etc.,  63  N.  Y.  14  ; 
Fahy  v.  North,  19  Barb.  341  ;  Clark  z>.  Gilbert,  32  Barb.  576  ; 
Seymour?,'.  Cagger,  13  Hun,  29  ;  Boast  ?'.  Firth,  L.  R.  (4  C.  P.) 
I.  Almost  all  of  these  cases  were  marked  by  the  circumstance 
that  the  services  belonged  to  the  class  of  skilled  .labor.  In  such 
instances  the  impossibility  of  a  substituted  service  by  the  repre- 
sentative of  the  servant  is  very  apparent.  The  master  has 
selected  the  servant  by  reason  of  his  personal  qualifications,  and 
ought  not,  when  he  dies,  to  abide  the  choice  of  another  or 
accept  a  service  which  he  does  not  want.  While  these  cases 
possess,  with  a  single  exception,  that  characteristic,  I  do  not 
think  they  depend  upon  it.  Fahy  v.  North  was  a  contract  for 
farm  labor,  ended  by  the  sickness  of  the  servant,  and  quite  uni- 
formly the  general  rule  stated  is  that  the  servant's  agreement 
to  render  personal  services  is  dissolved  by  his  death.  There 
happens  a  total  inability  to  perform  ;  it  is  without  the  servant's 
fault,  and  so  further  performance  is  excused  and  the  contract 
is  apportioned.  If  in  this  case  Lacy  had  died  on  that  day  in 
July,  his  representative  could  not  have  performed  his  contract. 
McMahan,  surviving,  would  have  been  free  to  say  that  he  bar- 


g^C.  11.]  LACY   V.    CETMAX.  959 

gained  for  Lacy's  services,  and  not  for  those  of  another  selected 
and  chosen  by  strangers,  and  either  the  contract  would  be 
broken  or  else  dissolved.  I  have  no  doubt  that  it  must  be 
deemed  dissolved,  and  that  the  death  of  the  servant,  bound  to 
render  personal  services  under  a  personal  control,  ends  the 
contract,  and  irrespective  of  the  inquiry  whether  those  services 
involve  skilled  or  common  labor.  For  even  as  it  respects  the 
latter,  the  servant's  character,  habits,  capacity,  industry,  and 
temper,  all  enter  into  and  affect  the  contract  which  the  master 
makes,'and  are  material  and  essential  where  the  service  ren- 
dered is  to  be  personal  and  subject  to  the  daily  direction  and 
choice  and  control  of  the  master.  He  was  willing  to  hire  Lacy 
for  a  year,  but  Lacy's  personal  representative,  or  a  laborer  ten- 
dered by  him,  he  might  not  want  at  all  and  at  least  not  for  a 
fixed  period,  preventing  a  discharge.  And  so  it  must  be  con- 
ceded that  the  death  of  the  servant,  employed  to  render  per- 
sonal services  under  the  master's  daily  direction,  dissolves  the 
contract.     Babcock  v.  Goodrich,  3  How.  Pr.  (N.  S.)  53. 

But  if  that  be  so,  on  what  principle  shall  the  master  be  differ- 
ently and  more  closely  bound  ?     And  why  shall  not  his  death 
also  dissolve  the  contract  ?     There  is  no  logic  and  no  justice  in 
a  contrary  rule.     The  same   reasoning  which   relieves  the  ser- 
■  vant's  estate  relieves  also  the  master's,  for  the  relation  consti- 
tuted is  personal  on  both  sides  and  contemplates  no  substitu- 
tion.    If  the  master  selects  the  servant,  the  servant  chooses  the 
master.     It  is  not  every  one  to  whom  he  will  bind  himself  for  a 
year,  knowing  that  he  must  be  obedient  and  render  the  services 
required.      Submission  to  the  master's  will  is  the  law  of  the  con- 
tract which  he  meditates  making.      He  knows  that  a  promise 
by  the  servant  to  obey  the  lawful   and  reasonable  orders  of  his 
master  within  the  scope  of  his  contract  is  implied  by  law,  and 
a  breach  of  this  promise  in  a  material  matter  justifies  the  master 
in  discharging  him.     King  v.  St.  John,  Devizes,  9  B.  &  C.  896. 
One  does  not  put   himself   in   such    relation   for  a  fixed  period 
without  some  choice  as  to  whom  he  will  serve.     The  master's 
habits,  character,  and  temper  enter  into  the  consideration   of 
the  servant  before   he   binds  himself  to  the  service,  just  as  his 
own  personal  characteristics  materially  affect  the  choice  of  the 
master.     The  service,  the  choice,  the  contract  are  personal  upon 
both  sides,  and  more  or  less  dependent  upon  the  individuality 
of  the  contracting  parties,  and  the  rule  applicable  to  one  should 
be  the  rule  which  governs  the  other. 

If  now  to  such  a  case— that  is,  to  the  simple  and  normal  rela- 
tion of  master  and  servant,  involving  daily  obedience  on  one 
side  and  constant  direction  on  the  other-we  apply  the  sug- 


g60  LACV    V.    GETMAN.  [CHAP.  Ill 

gested  test  of  possibility  of  performance  in  substantial  accord 
with  the  contract,  the  result  is  not  different.  It  is  said  that  if 
the  master  dies  his  representatives  have  only  to  pay,  and  any 
one  may  do  that.  But  under  the  contract  that  is  by  no  means 
all  that  remains  to  be  done.  They  must  take  the  place  of  the 
master  in  ordering  and  directing  the  work  of  the  farm,  and  re- 
quiring the  stipulated  obedience.  That  may  prove  to  effect  a 
radical  change  in  the  situation  of  the  servant,  as  it  seems  to 
have  done  in  the  present  case,  leading  the  plaintiff  to  the  verge 
of  refusing  to  work  further  for  either  widow  or  executrix,  whose 
views  apparently  jangled.  The  new  master  cannot  perform 
the  employer's  side  of  the  contract  as  the  deceased  would  have 
performed  it,  and  may  vary  so  far  from  incapacity  or  fitful  tem- 
per or  selfish  greed,  as  to  make  the  situation  of  the  servant 
materially  and  seriously  different  from  that  which  he  contem- 
plated and  for  which  he  contracted. 

We  are,  therefore,  of  opinion  that  in  the  case  at  bar  the  con- 
tract of  service  was  dissolved  by  the  death  of  McMahan,  and 
his  estate  was  only  liable  for  the  services  rendered  to  the  date 
of  his  death. 

The  judgment  should  be  reversed  and  a  new  trial  granted 
with  costs  to  abide  the  event. 

All  concur. 

Judgment  reversed. 


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